When it comes to investigations into workplace harassment, the Oregon Legislature isn’t special after all.
A Multnomah County judge on Monday ordered top lawmakers and other legislative officials to cooperate with a months-old investigation by the Oregon Bureau of Labor and Industries into whether the Capitol is a hostile work environment.
In doing so, Judge Christopher Marshall tossed aside the Legislature's argument that the bureau, known as BOLI, lacked constitutional authority to penalize officials if it finds evidence of wrongdoing.
“The court fully appreciates the constitutional arguments, but finds they’re without merit in this situation,” Marshall said from the bench.
The judge’s order means top lawmakers and other senior Capitol officials must produce a wide array of documents in coming weeks, potentially dating back more than seven years. Officials including House Speaker Tina Kotek, D-Portland, Senate President Peter Courtney, D-Salem, and Senate Minority Leader Jackie Winters, R-Salem, had refused to comply with subpoenas from investigators.
Per Marshall’s order, eight Capitol staffers will also need to sit down for interviews with BOLI investigators.
The ruling is the latest twist in an unprecedented investigation into the Legislature, launched in August by Labor Commissioner Brad Avakian. In a complaint that took many by surprise, Avakian accused legislative leaders of fostering a hostile work environment at the Capitol.
Many allegations in the complaint revolved around former state Sen. Jeff Kruse, who resigned this year after an investigation found he'd harassed fellow lawmakers, interns and others at the Capitol. Avakian contends that top lawmakers didn't do enough to stop Kruse's behavior when they first learned of it, and that attorneys for the Legislature misled harassment victims about their rights — allegations officials have strongly denied.
Two former interns for Kruse have come forward to say an attorney investigating the former senator told them they could not file a complaint over unwelcome touching and comments, which wasn't true. The attorney, Dian Rubanoff, has consistently denied that account.
Officials first pledged to cooperate with Avakian’s investigation. But not long afterward, many decided not to comply with subpoenas sent by his investigators. They argued that the inquiry was overly broad, and that Avakian lacked authority to penalize legislators even if wrongdoing was discovered.
They also pointed out that the Legislature has acknowledged misbehavior by Kruse, and that officials are looking into the state’s rules for dealing with with harassment.
Legislative officials argued the BOLI investigation jeopardizes the identities of harassment victims, even though officials at the bureau have obtained a protective order prohibiting public release of that information.
“We should acknowledge we’re sending a clear message to all the other future potential complainants,” Shayda Le, a private attorney representing the Legislature, said in court Monday. She argued that ordering the release of documents to BOLI investigators would produce a “chilling effect,” since victims in the future wouldn’t believe their information would be confidential.
That was vigorously disputed by Nena Cook, a private lawyer representing BOLI, who suggested the Legislature was trying to dodge full accountability for harassment issues.
“We’re talking about victims who have never had their claims investigated,” Cook said. “The outcome they want ... is to have their claims of sexual harassment investigated. Those claims didn’t go away just because Sen. Kruse resigned.”
In the audience at the hearing was state Sen. Sara Gelser, D-Corvallis, who complained about Kruse’s conduct and had a central role in bringing allegations against him to light.
Gelser noted that she had been subpoenaed along with other lawmakers, but that she’d chosen to cooperate.
“I don’t believe the Legislature or any elected official is above the law,” Gelser said after the hearing. She added: “People who come forward should not be made to feel bad for coming forward.”
The judge ordered officials to produce documents requested in the subpoenas by Dec. 5, and for interviews to take place by Dec. 18. Edwin Harnden, another attorney representing the Legislature, suggested that timeline might be “a push.”
Marshall also declined to issue penalties to officials who’d refused the subpoenas. Avakian had asked for fines that totaled more than $1 million, but his attorney reduced that request in court Monday. Marshall said no penalty was warranted.
“The subpoenaed parties did have a reasonable cause to at least pause and object,” Marshall said. “It’s not unreasonable that [they] did what they did.”
Harnden declined to talk about the ruling after the hearing, saying he needed to speak with his clients.
BOLI issued a statement, reading in part that “the Legislature advanced an argument that they need not act like every other employer in the state in response to requests for information from our agency. We are pleased that the court agreed with BOLI and the Legislature must begin to cooperate with its sexual harassment investigations.”
What becomes of Avakian’s investigation now isn’t entirely clear. His investigators may have free rein to dig through government documents, but the commissioner’s time in office is limited. His last day is Jan. 4.
After that, Avakian will be replaced by Labor Commissioner-elect Val Hoyle, a former Democratic lawmaker with allies in the Capitol.
Asked Monday about her take on the investigation, Hoyle responded: “There is one commissioner at a time and I look forward to taking on the responsibilities of the job on Jan. 7."