OREGON LEGISLATIVE ADMINISTRATION COMMITTEE CONFIDENTIAL REPORT - Investigation of Complaint by Senators Alan Olsen, Tim Knopp, Dennis Linthicum, and Kim Thatcher 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 quorum, 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 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) 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.