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 , Oregon State August 7, 2019, and August 23, 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 content arising from various news topics relevant to the complaints in Cases 30-34 4 Senate President Peter Courtney’s June 20, 2019, letter to Governor Kate Brown requesting that Governor Brown direct the Oregon to assist the Senate 5 Correspondence provided by some of the 11 Republican Senators relating to events during the last two weeks of the Legislative Session 6 Internal reports of the results of searches of the emails of the 11 Republican Senators for the term “terrorism” “terrorist” or the like and analysis of relevant emails 7 June 20, 2019, Memo from President Courtney and Speaker Kotek regarding Capitol Safety and Health Concerns 8 June 25, 2019, Memo from Brenda Baumgart to Jessica Knieling and Dexter Johnson regarding Senator Boquist 9 June 28, 2019, email from Jessica Knieling to employees at the Capitol regarding building safety and security 10 Materials provided by some of the accused in Cases 30-34 11 Portions of proceedings in the House and Senate during June 2019

VI. SUMMARY OF FINDINGS 7 1. The 2019 Oregon Legislative Session began on January 22, 2019.

2. According to news reports, some Oregon Republican Senators failed to attend May 2019 floor sessions of the Oregon Senate while the Senate was considering House Bill 3427. The Senators returned after a few days after reportedly reaching a deal with Governor Kate Brown.

3. While the Senate was in session on June 19, 2019, Senator Brian Boquist told Senate President Peter Courtney that “… if you send the state police to get me, Hell is coming to visit you, personally.” Within minutes, Senator Boquist apologized to Senator Courtney.

4. Also, on June 19, 2019, Senator Boquist told a KGW reporter that he informed the state police that if they tried to apprehend him: “Send bachelors and come heavily armed, I’m not going to be a political prisoner in the state of Oregon, it’s just that simple.” This statement was widely reported in the local and national news. According to a Newsdesk report, Senator Boquist’s statement was reported by local and national media more than 300 times.

7 Cases 30, 31, 32, 33, and 34 were received simultaneously and allege overlapping facts. This Summary of Findings lists all of the overlapping facts for all five complaints, except Case 32, which includes facts not relevant to Cases 30, 31, 33, and 34. pg. 5 5. On or about June 20, 2019, 11 Republican Senators left the Capitol. The walkout received local and national press attention. According to a Newsdesk report, the walkout was mentioned in more than 100 local and national media reports. As a result of the walkout, the Senate did not have a quorum and could not pass legislation.

6. On Thursday, June 20, 2019, Senator Courtney sent Governor Brown a letter asking her to direct the Oregon State Police to assist the Senate for the purpose of establishing a quorum.

7. On June 20, 2019, the East Oregonian quoted Senator Boquist as referring to Governor Brown as “six-gun Kate.”

8. On Friday, June 21, 2019, the Oregon State Police identified credible threats from outsiders to harm the state police, people at the Capitol, and the Capitol itself. The third-party threats were not necessarily the result of any actions or public statements by any elected officials. Some of the threats came from individuals outside of the state of Oregon. Because the only activity planned at the state Capitol on the following day (Saturday, June 22, 2019) was a Senate Session, which would be conducted without a quorum, Travis Hampton, the superintendent of the Oregon State Police recommended that the presiding officer (Senate President Courtney) close the Capitol on June 22, 2019, in order to protect the Capitol and its occupants. President Courtney agreed. The Capitol closed on June 22, 2019, and reopened the following day.

9. On June 21, 2019, Senator James Manning Jr. texted two of the 11 Absent Senators about militia threats to the Capitol. On June 22, 2019, at 2:38 p.m., Senator Manning tweeted a Fox News article entitled “Oregon Senate closes due to ‘possible militia threat’ after Republican walkout.” Senator Manning’s tweet included the comment “terrorism.” The tweeted Fox news article stated that “right wing groups posted their support for the 12 [sic] rebel Republicans on Friday, including one group – The Oregon Three Percenters – who joined an armed takeover of a wildlife refuge in 2016.” The article also quoted Senate Republican Leader Herman Baertschiger Jr. as saying, “We will not stand by and be bullied by the majority party any longer.” It also referenced Senator Boquist’s statement telling Oregon State Police to “send bachelors and come heavily armed.”

10. When I interviewed him for this investigation, Senator Manning stated that the terrorism label he added in his tweet was intended to reference the closure of the Capitol due to a possible militia threat.

11. On or about June 25, 2019, Senator Ginny Burdick was interviewed by reporters. Lauren Dake of Oregon Public Broadcasting asked Senator Burdick how she would characterize the 11 Republican Senators’ walkout. Senator Burdick responded, “I don’t know what to call it … I want to call it terrorism because they are not doing their job, and it has fractured the entire institution.”

12. On June 25, 2019, Representative Paul Evans tweeted the following message: “Not that Senator Courtney asked me, but – my own military experience taught me the difference between respectful diplomacy and giving in to terrorists … negotiating with people who are not invested in shared outcomes … is a dangerous path. Today is a sad, tragic day for Oregon.”

pg. 6 13. On June 25, 2019, the Klamath Falls Herald and News quoted Senator Linthicum as stating that the 11 Absent Senators “will not allow the Governor’s threats or bullying to coerce us into voting.”

14. According to a news report dated June 26, 2019, Representative Evans sent another tweet, which stated “hey – evidently my comments appear to have offended one of the AWOL Senate Republicans … I’m not certain why they took offense, but, I hope they understand the impact of their dereliction of duty upon Oregon families. I’m sorry if my comments hit too close to home.”

15. On June 26, 2019, Representative Evans made the following comment on the floor of the House while it was in session: “One of my comments on tweet, an analogy that I drew, seems to have offended some folks and perhaps escalated things that I didn’t intend to escalate.” He closed by stating “And I want to make that part of the record that I made a mistake, and I will try do better. Thank you.”

16. Both Senator Tim Knopp and Senator James Manning were interviewed for an HBO Vice program that aired on June 26, 2019. The program focused on the absence of the 11 Republican Senators. Neither Senator Knopp nor Senator Manning made disrespectful or accusatory comments during their interviews included in the news program.

17. The Oregon State Police determined that it was appropriate to arrange for increased police presence during the final days of the Legislative Session. Oregon State Police believed that the stress level at the Capitol was very high. There were concerns about a potential challenge to the legislative process in the last two days of the Legislative Session, and potential harm to the Capitol and its occupants. The state police’s heightened concern was not necessarily the result of any action or public statement by any elected officials.

18. According to a Newsdesk report, the tweets by Senator Manning and Representative Evans and the interview response by Senator Burdick received no national attention and very little local attention by the media.

19. Several Republican Senators provided me with critical, and, in a few cases, threatening communications that each of them had received from third parties in the last month of the Legislative Session and thereafter. One letter, addressed to all of the 11 Absent Senators, was extremely threatening. This letter made no reference to terrorist(s)/terrorism. The letter criticized the 11 Republican Senators for being away from the Capitol, and it criticized Senator Boquist for his statement referenced in Paragraph 4 above. Senator Thatcher provided a handful of emails referencing terrorist comments in the press. Most of those third-party emails to Senator Thatcher were supportive, but one was extremely threatening and one was critical. The threatening email (dated June 26, 2019) stated “… you are absolutely a terrorist …” This email appeared to be a response to a Willamette Week article quoting Senator Thatcher as saying she would not return to the Capitol “in light of [the Democratic] members comparing Republicans to terrorists.” The same Willamette Week article also quoted Jonathan Lockwood (spokesman for Senators Thatcher and Linthicum and Representative Bill Post) and referenced Representative Evans’ tweet regarding terrorists and Senator Boquist’s statement regarding the Oregon State Police. Based on the timing

pg. 7 and content of the threatening June 26, 2019 email, and the Willamette Week article, I cannot conclude that the email’s threat resulted from the tweets by Senator Manning or Representative Evans or the interview response by Senator Burdick.

20. In order to further investigate the allegation that the 11 Absent Senators and their families were threatened due to the terrorist/terrorism comments by Senators Burdick and Manning and Representative Evans, I asked the Legislature to provide emails from and to the 11 Republican Senators from August 2018 to August 2019 containing the terms “terrorism” or “terrorist” or the like. A surprising number of emails contained the term “terrorist” or “terrorism” or similar terms, but most of them were irrelevant to this complaint. There were several emails prior to the terrorist/terrorism comments by Senators Burdick and Manning and Representative Evans that referred to elected officials (including some of the 11 Republican Senators) and political opponents (on both sides of the aisle) as “terrorists”. During the last two weeks of the Session and thereafter, the 11 Republican Senators received several emails that specifically referenced the “terrorist” label applied to the 11 Absent Senators by the Democrats. However, a majority of those emails were supportive of the 11 Republican Senators and critical of the “terrorist” label.

21. A number of additional emails contained the term “terrorism” or “terrorist” without an explicit or implied connection to comments by Senators Manning or Burdick or Representative Evans. The vast majority of those communications criticized one or more of the 11 Absent Senators for their absence from the Capitol, Senator Boquist’s statement referenced in Paragraph 4 above, or the writer’s perception that the 11 Absent Senators failed to condemn the reported militia threat to the Capitol. By way of example, a June 24, 2019, email to Senator Boquist (before Senator Burdick’s comment to a reporter and before the tweet by Representative Evans ) accused Senator Boquist of being a terrorist for advocating violence against law enforcement. A June 24, 2019, email to Senator Knopp referred to militia threats as domestic terrorism. Based on my email review, I cannot conclude that the use of the terms “terrorism” or “terrorist” by Senators Manning and Burdick and Representative Evans caused the threatening communications received by the 11 Absent Senators.

22. Most of the 11 Absent Senators returned to the Capitol on June 29, 2019.

23. The Legislative Session ended on June 30, 2019.

VII. CONCLUSIONS Allegation No. 1: Senate President Peter Courtney and Speaker of the House Tina Kotek violated Rule 27 by failing to rebuke Representative Paul Evans, Senator James Manning, and Senator Ginny Burdick for their comments about 11 Oregon Republican Senators acting as terrorists or creating terrorism. Finding: Not Substantiated. As a threshold matter, there is no evidence that Senator Manning referred to the 11 Absent Senators as terrorists or stated that they were engaged in terrorism. Senator Burdick responded to a reporter’s question as set forth in Section VI, 11 above. Representative Evans sent a tweet as set forth in Section IV, 12 above.

Rule 27 does not require the Senate President or the Speaker of the House to rebuke the conduct of members. As stated above, Rule 27 requires an appointing authority or supervisor to

pg. 8 take appropriate action to prevent, promptly correct, and report harassment about which supervisor or the appointing authority knew or, with the exercise of reasonable care, should have known. Rule 27(3)(b)(c).8

While President Courtney and Speaker Kotek had at least general awareness of the nature of the communications by Representative Evans, Senator Manning and/or Senator Burdick, I find that they did not know or in the reasonable exercise of care should have concluded that harassment (as defined by Rule 27) had occurred or was occurring. Therefore, their failure to report and/or correct does not constitute a violation of Rule 27.

Allegation No. 2: President Courtney violated Rule 27 when he sent law enforcement to arrest the 11 Absent Senators. Finding: Not Substantiated. In his complaint and our interview, Senator Olsen acknowledged that it was proper for President Courtney to request that the Oregon State Police retrieve the 11 Absent Senators. However, Senator Olsen asserted that President Courtney’s use of the term “arrest” suggested criminal activity. I asked Senator Olsen to send me documents that establish that President Courtney used the term “arrest.” Senator Olsen did not supply the requested documents. I was unable to independently locate any evidence that President Courtney referred to the retrieval of the 11 Absent Senators as an “arrest.” President Courtney’s June 20, 2019, letter to the governor makes no reference to an “arrest.” See Exhibit 2. However, even if President Courtney used the term “arrest,” his terminology would have been consistent with the language of the Oregon Attorney General in describing the process for compelling attendance of absent members. See Exhibit 3. Accordingly, there was no violation of Rule 27 based on this allegation.

Allegation No. 3: President Courtney and Speaker Kotek’s failure to act on the comments by Senator Burdick, Senator Manning, and Representative Evans resulted in closure of the state Capitol for fear of violence. Finding: Not Substantiated. The comments by Senator Burdick, Senator Manning, and Representative Evans occurred after the state Capitol was closed, and, therefore, President Courtney and Speaker Kotek’s alleged failure to respond to those comments did not and could not have resulted in the Capitol closure. The Capitol was closed by President Courtney based upon the advice of the Superintendent of the Oregon State Police. The Oregon State Police recommended closure of the Capitol on June 22, 2019, due to credible threats received from outsiders. No violation of Rule 27 occurred.

VIII. RECOMMENDATIONS Based on my conclusions, there is no reason to discipline Senate President Peter Courtney nor Speaker of the House Tina Kotek.

8 I assume, without deciding, that any supervisor has a duty to report, even if the victim and perpetrator are not within their supervisory authority. I, therefore, assume, without deciding, that President Courtney and Speaker Kotek had a duty to report (and, if possible, prevent and correct) harassment by fellow members. pg. 9 IX. ADDITIONAL OBSERVATIONS Several witnesses (from both sides of the aisle) expressed regret resulting from the lack of civility and respect at the Oregon Legislature during the 2019 Session. Disagreement is inevitable. Lack of civility is not.

Several witnesses (again from both sides of the aisle) also expressed the opinion that Rule 27 is not the proper vehicle to address disrespect or lack of civility between elected officials, at least in the case of disputes lacking a protected class component. My work on Cases 30-34 leads me to recommend that the Joint Committee on Conduct develop and maintain a respectful workplace policy as contemplated in the recently adopted, but not yet effective (in large part) Rule 27(18). Members of the Legislature should commit to being respectful and civil, even when they disagree. Members should also consider whether the appropriate response to disrespectful or offensive rhetoric is to talk to the person being disrespectful, rather than initiating a Rule 27 complaint and investigation. If doing so is ineffective or not advisable, the respectful workplace policy may provide a better, less resource-intensive process for addressing concerns of disrespectful conduct.

4849-2174-9671, v. 1

pg. 10 Case 33 Exhibit 1 - Page 1 of 2 Case 33 Exhibit 1 - Page 2 of 2 Case 33 Exhibit 2 - Page 1 of 1 OP 6838 (Oregon Attorney General Opinions)

Op-6838, June 2, 1971

DEPATRMENT OF JUSTICE

STATE OFFICE BUILDING

SALEM,OREGON 97310

TELEPHONE:(503)364-2171

June 2, 1971

No. 6838

This opinion is in response to a question presented by Holly Holcomb, Superintendent of State Police, on April 5, 1971.

QUESTION PRESENTED

May State Police be used during a call of the House to compel the attendance of absent members at a legislative session?

ANSWER GIVEN

Yes.

DISCUSSION

Article IV, Section 12 of the Oregon Constitution provides, in part, as follows:

"Two thirds of each house shall constitute a quorum to do business, but a smaller number may meet; adjourn from day to day, and compel the attendance of absent members. ..."

The right to compel attendance, usually exercised through the sergeant at arms, has throughout and English parlia•mentary history been recognized and enforced. Mason states as follows:

"The right of a house of a state legislature to compel the presence of absent members is usually guaranteed by a constitutional provision, even to ordering the arrest of members."

"When a call of the house has been ordered, the doors are promptly closed, and the clerk calls the roll of members and notes the absentees. The list of the members not recorded as present may be verified by calling the names, and the list of absentees is then given to the sergeant- at-arms with instructions to bring in the absent members."

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Case 33 Exhibit 3 - Page 1 of 3 OP 6838 (Oregon Attorney General Opinions)

". . .when a member is brought in by a sergeant-at arms he may be required to pay any costs incident to bringing him in." Mason, Manual of Legislative Procedure Sec. 190(2), 195(1), (2) (1962 ed.) Cushing is somewhat more specific, as indicated in the following excerpts:

"The right of a legislative assembly ... to have the attendance of all its members except those who are absent on leave, or in the service of the assembly, and to enforce it, if necessary, is one of the most undoubted and important privileges."

"This order is always accompanied by a resolution, 'that such members as shall not then attend be sent for in custody of the sergeant-at-arms.'"

"The duties of this officer are analogous to those of a sheriff in a court of justice. ... He has the appointment and supervision of various officers in his department, such as the deputy- sergeant, messengers, and sometimes the door•keepers; ..."

"It is the duty of the sergeant-at-arms and his assistants to execute the commands of the house, . . . but, if there be occasion, the house may call in other officers to his assistance. Thus, when . . . the House of Commons ordered Oates to be sent for . . . it was ordered, at the same time, that the sergeant-at-arms go with his messengers and bring Mr. Oates to the bar of the house; and all constables and all other officers and persons whatsoever were required to be aiding and assisting him therein, if need require; ..." [also stating several other examples in which various peace officers and other persons were ordered to assist the sergeant-at-arms.] Cushing, Legislative Assemblies, Sec. 264, 265, 335, 1062 (9th ed. 1874) .

No cases in point have been found, nor have we found any examples other than those set forth in Cushing, supra Sec. 1062. However, we conclude that each house does in fact have power to direct other persons (i.e., members of the state police) to assist the sergeant at arms in arresting and returning absent members upon a call of the house.

It is unquestionable that the sergeant at arms himself has such authority, yet the office of sergeant at arms is not created either by the Constitution or legislation, but instead by the rules of each house. E.g., Rule 15.01(2), (3)(b), Rules of the Senate (1971). If a house of the legislature may confer such authority upon one person, it may confer it upon another. There would, for example, be no doubt of the equivalent authority of a person designated Assistant Sergeant at Arms. In that case, it logically also has power to confer this authority on a member of the state police or any other person.

If the call of the house directs the presiding officer to direct such persons as may be necessary to assist the sergeant at arms, or a rule of the house to provide, there would be no doubt as to his power. However, Rule 3.55(3), Rules of the Senate (1971) merely directs the Sergeant at Arms, upon a Call of the Senate, "to cause all members who are not excused to come to the floor." In addition, Rule 15.05(5) provides:

"In addition to personnel otherwise authorized, the President may appoint such other personnel as he considers necessary."

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Case 33 Exhibit 3 - Page 2 of 3 OP 6838 (Oregon Attorney General Opinions)

This language, in our opinion, fairly implies that the President of the Senate has authority to direct members of the state police to assist the Sergeant at Arms.1 Nor is there any doubt that State Police officers may lawfully respond to a request by the presiding officer to assist the sergeant-at-arms. ORS 181.030 provides, in part, as follows:

"(3) The department and each member of the department shall have in general the same powers and authority as those conferred by law upon sheriffs, police officers, constables, peace officers, ... of the state, counties and municipalities.

" (4) The members of the State Police shall be subject to the call of the Governor, and are empowered to cooperate with any other department or authority of the state, . . . preserving law and order throughout the state; . . ."

Furthermore, the current legislature has enacted, and the Governor has recently signed, HB 1173 which amends ORS 181.050 to provide that any branch of state government may call upon the State Police to enforce any regulation of such branch. Sec. 1, ch. 58 [1971] Or. Laws 81.

We accordingly conclude that each House has power to direct members of the state police to arrest and return absent members upon a call of the house; that the presiding officer of each house would have such power upon specific authority con- tained in a rule or resolution, or in an adopted motion for call of the house; and the State Police may lawfully respond to such direction.

LEE JOHNSON

Attorney General

LJ:DFO:JAR:br

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1The Rules of the House of Representatives are quite similar, except that there is no provision equivalent to Senate Rule 15.05(5) giving the Speaker of the House express power to appoint additional personnel as he considers necessary.

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Case 33 Exhibit 3 - Page 3 of 3