OREGON LEGISLATIVE ADMINISTRATION COMMITTEE

CONFIDENTIAL REPORT - Investigation of Complaint by Senators Alan Olsen, Tim Knopp, , and against Representative Paul Evans – Case 34

October 15, 2019

Prepared by: Sarah J. Ryan Jackson Lewis P.C. 200 SW Market St., Ste. 540

pg. 1 Portland, OR 97201 Complainants: Senators Alan Olsen, Tim Knopp, Dennis Linthicum, and Kim Thatcher Respondent: Representative Paul Evans

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, Tim Knopp, Dennis Linthicum, and Kim Thatcher (“Complainants”).1 The complaints, including the written complaint by Senator Olsen, attached as Exhibit 1 (Complaint 34), 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 Representative Paul Evans referred to the eleven named Senators (“11 Absent Senators” or the “11 Republican Senators”) as terrorists when they denied the Senate a , and, thus, created a hostile work environment in violation of Rule 27.

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 Although ill-advised and potentially offensive, Representative Paul Evans’ reference to terrorists did not, under the circumstances, rise to the level of creating a work environment that a reasonable employee would find intimidating, hostile, and offensive, and, thus, did not violate Rule 27.

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 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.

1 Senator Olsen informed me that he was making the complaint on behalf of the 11 Republican Senators identified in Exhibit 1. Senators Linthicum, Knopp, and Thatcher confirmed that they desired to be Complainants in Case 34. Therefore, I have identified only Senators Olsen, Knopp, Linthicum, and Thatcher 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 ‘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 Representative Evans’ tweet was protected free speech.3

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 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. The highest-ranking member of the same caucus of the House is Representative Barbara Smith Warner.

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

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 Olsen, Knopp, Linthicum, and Thatcher, and Representative Evans.

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.

pg. 3 retained by the Legislative Administrative Committee to conduct an investigation in accordance with Rule 27.

Interview Subject 6 Position Date Interviewed Senator August 2, 2019 Senator, Senate Majority August 1, 2019 Leader Senator, Senate President July 26, 2019 (by phone) and September 11, 2019 Paul Evans Representative August 2, 2019 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) 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)

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 State Police 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

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 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 it 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.

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

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 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.”

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.”

pg. 6 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 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.

pg. 7 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: Representative Paul Evans violated Rule 27 by referring to the 11 Absent Senators as terrorists. Finding: Not Substantiated. The tweet by Representative Evans was ill-advised and it could be offensive to a reasonable person. However, based upon the context of Representative Evans’ tweet, I cannot find that it objectively created an intimidating, hostile, or offensive work environment. In considering whether conduct is objectively offensive, conduct cannot be viewed in isolation. Any challenged conduct necessarily falls on a spectrum. At one end of the spectrum, there are the types of minor annoyances or disappointments that do not rise to the level of violating Rule 27. On the other end of the spectrum is the sort of conduct that is patently offensive, clearly inappropriate, and creates an abusive work environment.

Under Rule 27, workplace harassment is defined as behavior that, to a reasonable person, creates an intimidating, hostile, or offensive work environment. When placed in context, I find that Representative Evans’ tweet, while potentially offensive, did not create a hostile or offensive work environment. In so finding, I follow a well-accepted legal framework. When assessing hostile work environment claims, courts consider “all the circumstances,” which may include “the frequency of the … conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). The environment must be both objectively and subjectively offensive; “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Id. at 871–72. The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. Id. at 872. Accordingly, a single incident must be “extremely severe” to support a hostile work environment claim. Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000).

My finding that Representative Evans’ tweet did not create a hostile work environment is based on a number of factors. Representative Evans’ tweet did not criticize anyone because of, or

pg. 8 otherwise implicate anyone in terrorist acts because of their protected status (such as race, ethnicity, or religion).8 The comment did not threaten or advocate violence. A fair reading of Representative Evans’ tweet indicates that he directed his criticism toward President Courtney, not the 11 Absent Senators. At the time of Representative Evans’ tweet, there had been extreme rhetoric on both sides of the aisle, which contributed to an undesirable atmosphere at the Capitol. Representative Evans made a public apology for his tweet on the House floor and removed the tweet at some point. Finally, the tweet was directed at the activities of his fellow elected officials, not those in a subordinate position.9 While I cannot fault the Complainants’ for their reaction to Representative Evans’ tweet, the totality of the circumstances suggest that the comment is not of the magnitude that supports a finding Representative Evans violated Rule 27.

Allegation No. 2: Representative Evans’ tweet caused the Oregon State Police to close the Capitol. Finding: Not Substantiated. Representative Evan’s tweet was issued on June 25, 2019, which was after the Oregon State Police recommended closure of the Capitol, and after the Capitol was closed an subsequently reopened. The closure of the Capitol was not and could not have been caused by Representative Evans’ tweet.

Allegation No. 3: Representative Evans’ tweet impugned the integrity of Complainants and subjected the 11 Absent Senators and their families to threats of violence. Finding: Not Substantiated. Representative Evans’ tweet could be interpreted as impugning the integrity of the 11 Absent Senators. However, it is not possible to determine that Representative Evans’ tweet brought threats of violence to the 11 Absent Senators and their families. As stated above, the threats received by the 11 Absent Senators appeared to be focused on their absence from the Capitol, Senator Boquist’s comment, and the perception that the 11 Absent Senators should have condemned a militia threat. Moreover, with one possible exception, a search of the emails of the 11 Absent Senators for the term “terrorist,” “terrorism,” or the like did not uncover any threatening communications to the Senators prompted by Representative Evans’ tweet. As stated above, a threatening email to Senator Thatcher referred to terrorism and may have been a response to the Willamette Week article described above in Section VI, 19. However, based on this email alone, I cannot conclude that Senator Evans’ tweet was the cause of the threat received.

VIII. RECOMMENDATIONS Based on my conclusions, there is no reason to discipline Representative Evans.

8 A similar comment about a Muslim, for example, could be quite different.

9 That is not to say that peer-to-peer harassment cannot occur because, of course, it can. However, with regard to this case, the relatively equal power positions of Representative Evans and the 11 Absent Senators is a factor that entered into my consideration. 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.

pg. 10 Case 34 Exhibit 1 - Page 1 of 4 Case 34 Exhibit 1 - Page 2 of 4 Case 34 Exhibit 1 - Page 3 of 4 Case 34 Exhibit 1 - Page 4 of 4