Oregon Legislative Administration Committee Confidential Report
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OREGON LEGISLATIVE ADMINISTRATION COMMITTEE CONFIDENTIAL REPORT - Investigation of Complaint by Senators Alan Olsen and Dennis Linthicum against Senate President Peter Courtney and Speaker of the House Tina Kotek – Case 33 October 15, 2019 Prepared by: Sarah J. Ryan Jackson Lewis P.C. 200 SW Market St., Ste. 540 Portland, OR 97201 pg. 1 Complainants: Senators Alan Olsen and Dennis Linthicum Respondents: Senate President Peter Courtney and Speaker of the House Tina Kotek I. INTRODUCTION The Oregon Legislative Administration Committee (“LAC”) retained the law firm of Jackson Lewis P.C. (“Investigator”) to investigate complaints asserted by Senators Alan Olsen and Dennis Linthicum (“Complainants”).1 The complaints, including the written complaint by Senator Olsen, attached as Exhibit 1 (Complaint 33), were received by this office on July 8, 2019, and were processed as formal complaints under Legislative Branch Personnel Rule 27 (“Rule 27”).2 The complaint asserts that Senate President Peter Courtney and Speaker of the House Tina Kotek created a hostile workplace by not rebuking Representative Paul Evans, Senator James Manning, and Senator Ginny Burdick for their respective “terrorism” comments. Complaint 33 further alleges that President Courtney violated Rule 27 by purportedly sending law enforcement to arrest 11 Republican Senators who were absent from the Capitol (the “11 Absent Senators” or “11 Republican Senators”). Finally, Complaint 33 alleges that President Courtney and Speaker Kotek failed to take remedial action regarding the terrorism comments, resulting in closure of the state Capitol. This report contains factual findings based upon the information made available in the course of investigating this complaint. Based on my factual findings, this report makes conclusions regarding disputed events, except where otherwise noted. Finally, this report makes recommendations based on my findings and conclusions. II. EXECUTIVE SUMMARY Senate President Peter Courtney and Speaker of the House Tina Kotek did not violate Rule 27. Rule 27 does not require President Courtney or Speaker Kotek to rebuke the conduct of elected officials. Additionally, I was not able to locate any statements by President Courtney referring to the “arrest” of the 11 Absent Senators. Even if Senator Courtney had used the term “arrest,” it would not have violated Rule 27. Finally, there is no basis to conclude that President Courtney or Speaker Kotek took actions or refrained from taking actions that led to the closure of the Oregon State Capitol on June 22, 2019. III. INVESTIGATIVE FRAMEWORK As relevant to this complaint, Rule 27 (eff. January 14, 2019) states that the Legislative Branch is committed to providing a safe and respectful workplace that is free from harassment. Under Rule 27(2)(b), harassment includes sexual harassment or workplace harassment, and both 1 Senator Olsen informed me that he was making the complaint on behalf of the 11 Republican Senators who left the Capitol during the Legislative Session. Senator Linthicum confirmed that he desired to be a Complainant in Case 33. Therefore, I have identified only Senators Olsen and Linthicum as Complainants. 2 Rule 27 was recently amended, but its amendments, as are relevant to this complaint, are not yet effective. This investigation was conducted pursuant to the “old” Rule 27. pg. 2 phrases are defined by the Rule. As relevant to this complaint, workplace harassment is defined as “unwelcome conduct in the form of treatment or behavior that, to a reasonable person, creates an intimidating, hostile, or offensive work environment. ‘Workplace harassment’ includes discrimination based on a person’s protected class. ‘Workplace harassment’ also includes unwelcome conduct that occurs outside of work during non-working hours if the conduct creates a work environment that a reasonable employee would find intimidating, hostile, or offensive. ‘Workplace harassment’ does not include every minor annoyance or disappointment that an employee may encounter in the course of performing the employee’s job.” Rule 27(2)(h). As relevant to this complaint, unwelcome conduct means, “conduct that an individual does not incite or solicit and that the individual regards as undesirable or offensive.” Rule 27(2)(g). Rule 27’s definition of workplace harassment does not contain a free speech exception. For that reason, I did not consider whether the comments by Senators Manning and Burdick and Representative Evans were protected free speech.3 Rule 27 also imposes obligations on appointing authorities and supervisors. Supervisors who are defined as a person “who directs the regular work assignments of any employee.” Rule 27(3)(a). Appointing authorities and supervisors are obligated to “take appropriate action to prevent, promptly correct and report harassment about which the … supervisor knew or, with the exercise of reasonable care, should have known.” Rule 27(3)(b). Appointing authorities and supervisors with knowledge of harassing conduct are obligated to report the conduct to the Human Resources Director or the Legislative Counsel. Rule 27(3)(c). Rule 27 provides for both an informal and formal reporting process concerning workplace harassment or discrimination. As noted above, this complaint is being processed as a formal complaint. Rule 27(6) governs the formal complaint process, which applies to this investigation. Pursuant to Rule 27 (6)(f), all employees “involved in the investigation shall cooperate with the investigation.” Following the conclusion of a formal harassment investigation, Rule 27 directs the Investigator to present draft findings of fact and recommendations to the Human Resources Director, the Office of the Legislative Counsel, the Complainant, and the person(s) alleged to be involved in the harassment or discrimination.4 Within five days after receiving draft findings of fact, recipients may request modification to the findings of fact. Any requests to modify the findings of fact must be made in writing and must explain the reason for modification. Any requests for a revision should be sent in writing to Jackson Lewis, P.C., Attn: Sarah J. Ryan, 200 SW Market Street, Suite 540, Portland, OR, 97201, or to [email protected]. The Human Resources Director and Office of Legislative Counsel will have no role in review of requests for modification to the report and any requests for 3 I am not suggesting that Rule 27 should have a free speech exception. Many forms of unlawful, protected class harassment and sexual harassment are based on speech alone. 4 In accordance with Rule 27, this draft is being provided to the Human Resources Director, the Office of Legislative Counsel, and Senators Courtney, Olsen, and Linthicum, and Representative Kotek. pg. 3 modification should be made to the Investigator for review and consideration. Any decision to modify will rest solely with the Investigator. Under subsection 7(d)(A) of Rule 27, when a formal harassment complaint involves a member of the Legislative Assembly, the final report’s factual findings and recommendations shall be provided to the highest-ranking member of the same caucus of the chamber in which the accused harasser serves or works. In the case where the person alleged to be involved in the harassment is a presiding officer, the report will be provided to the caucus leader of the same caucus and chamber of the presiding officer. Rule 27(7)(e)(B). This final report will be delivered to Senator Ginny Burdick for President Courtney and to Representative Barbara Smith-Warren for Representative Kotek. IV. INTERVIEWEES The following thirteen individuals were interviewed.5 Witnesses were reminded about Rule 27’s policy against retaliation. In addition, witnesses were advised that the Investigator was retained by the Legislative Administrative Committee to conduct an investigation in accordance with Rule 27. Interview Subject 6 Position Date Interviewed Brian Boquist Senator August 2, 2019 Ginny Burdick Senator, Senate Majority August 1, 2019 Leader Peter Courtney Senator, Senate President July 26, 2019 (by phone) and September 11, 2019 Paul Evans Representative August 2, 2019 Sara Gelser Senator July 26, 2019 and September 4, 2019 (both by phone) Travis Hampton Superintendent, Oregon State August 7, 2019, and August 23, Police 2019, (both by phone) Bill Hansell Senator September 20, 2019 (by phone) Tim Knopp Senator August 2, 2019 Tina Kotek Representative, Speaker of July 26, 2019 (by phone) the House Dennis Linthicum Senator July 31, 2019 (by phone) James Manning Jr. Senator July 26, 2019 and September 10, 2019 (both by phone) Alan Olsen Senator July 12, 2019 (by phone) Kim Thatcher Senator September 5, 2019 (by phone) 5 Cases 30, 31, 32, 33, and 34 were received simultaneously and alleged overlapping facts. The list of interviewees includes all witnesses interviewed and the list of documents includes documents reviewed for the five complaints collectively. 6 I attempted to contact all 11 Republican Senators for an interview, but some of them failed to respond to multiple requests for an interview. (One Senator responded by stating that he respectfully declined to participate.) pg. 4 V. DOCUMENTS REVIEWED The following is a list of documents and materials reviewed during the course of the investigation: No. Description 1 Legislative Branch Personnel Rule 27: Harassment-Free Workplace 2 Various news articles and press during May, June, July, and August 2019 3 A report commissioned from Newsdesk (a division of LexisNexis) regarding media