A draft policy on sexual harassment is now the blueprint for an Arizona House investigation of allegations nine women have made against Rep. Don Shooter, R-Yuma.
The policy House Speaker J.D. Mesnard released on October 30 to solicit feedback is now being put through the ultimate test of its effectiveness.
The policy is by no means perfect. Mesnard, R-Chandler, acknowledged as much when he sent it to all House lawmakers and staff. But that leaves questions unanswered about the investigative process, the bulk of which will be conducted by outside counsel, attorney Craig Morgan.
Morgan has experience investigating legislative wrongdoing, having served as special counsel on a House Ethics Committee investigation into the behavior of former Rep. Daniel Patterson in 2012.
The Arizona Capitol Times analyzed the draft sexual harassment policy, and spoke with Mesnard and House Rules Attorney Tim Fleming, to try to answer basic questions about how the process will work, what may be in store for Shooter and what other victims of harassment can do to have their experiences investigated.
What and who does the policy cover?
Sexual harassment is but one type of conduct that is explicitly not permitted, per the House’s draft policy, which also covers discrimination, creating a hostile work environment, and retaliation. Sexual harassment can be unwelcome sexual advances, be it physical or verbal, offensive remarks, and quid pro quo offers involving sexual favors. And the policy prohibits any sort of retaliation or reprisal against a victim of harassment for exercising their right to report harassment.
According to the policy, this only applies to staff and legislators. There is nothing written to imply that members of the public can seek recourse with the House if they feel harassed by a lawmaker at the Capitol. Mesnard said that is one part of the policy that may need to be reworded. Someone who doesn’t work directly for the House has a complaint, and wants it to be handled discreetly, would have to go to him or someone in leadership to look into the matter.
“If we need to fortify that in the policy, to make it clear we’re talking not just employees, staff, legislators, but someone from the public, lobbyists or anybody, we can certainly look at the language we have currently,” Mesnard said.
What is Morgan’s purpose as part of the investigative process? And how closely might his work here mimic what he has done in the past for the Ethics Committee?
Generally, Morgan’s purpose is to assist the investigative team, Fleming said. That team consists of upper-level staff from both caucuses. The committee hired Morgan and he will report to it. As soon as Morgan finishes his interviews and investigation, he’ll relay that information to the investigative team, which will provide the speaker with the evidence “so that action can be taken that’s appropriate,” Fleming said. The team won’t make recommendations to the speaker; its report will be heavy on “factual details,” Fleming said, leaving the rest to Mesnard to determine.
Fleming can’t say for sure what Morgan’s work will look like, because the investigative team is trying to give Morgan the latitude he needs to thoroughly and appropriately investigate all complaints. “I don’t know that it’ll look the same (as an ethics review),” he said. “I just know that when we’ve used him in the past, the product has been outstanding and very thorough work.”
What is being done to ensure the process is predictable to all involved and expedient?
As for predictability, look no further than the House policy as written. Though it’s just a draft, it’s what the House has, so the House is running with it. Fleming said that within days Mesnard had followed the policy and implemented an investigative team. Morgan’s hiring brings a level of professionalism to the process, particularly given the merits of his previous work, Fleming said.
While the House reacted quickly to get an investigative process started, there’s no strict timeline for an expedient wrap up. Morgan and the investigative team will be given the time they need to conduct a thorough investigation, even if that means the process carries over into the start of the 2018 legislative session on January 8. And policy states that “investigators are afforded discretion to adjust these recommended procedures, as they deem proper, to satisfy the needs and to fully remedy the concerns on the complainant.” The steps that are provided should be “considered” as a template for investigating complaints of sexual harassment.
“We made clear to Mr. Morgan we would hope the starting point would be the policy, because that’s what it is, that’s why it’s there, and that’s why we’re retaining him to help us,” Fleming said.
How can matters be “resolved” when the person being accused of harassment is a lawmaker?
The policy lists a dozen potential “remedial actions” at the conclusion of an investigation, ranging from a written reprimand to suspension without pay and reassigning the accused to another part of the Capitol offices, demotion, or firing. However, those actions can only be applied to a staffer at the House, not legislators, who can’t be fired.
Mesnard said he has several possibilities before him, from an administerial perspective, as remedies in the event he chooses to take further action against a fellow legislator, in this case, Shooter. “I can do pretty much anything up to and excluding expelling a member. I don’t have the power by myself to expel a member from the Legislature,” Mesnard said. “I do have powers even to restrict their access to various things, their role in the process.”
Mesnard said his hands aren’t tied just because the investigation is ongoing. “Until the investigations are done, what I have done to this point is remove (Shooter’s) responsibilities as (Appropriations Committee) chair. I haven’t eliminated his constitutional duty, frankly, to vote on bills. I haven’t elected to override that yet. I’m taking it a step at a time, a day at a time. And if we get closer to session and these things are still ongoing – and we’ll also have more evidence then, even if it’s not done, than we do now to sort through – then I can make a decision at that time.”
What is the standard of proof required in the investigation? Beyond a reasonable doubt, perhaps?
“It’s not that kind of standard,” Fleming said. “Because what workplace harassment and the policy intended to do is to approach a situation where there’s a need for remediation, something to happen quickly to stop a problem, where someone is feeling uncomfortable because of workplace harassment issues. So it really is going to be based on what the investigators find and what they can report to us.”
It’s not really an apples to apples situation where investigators have to offer unquestionable proof.
“We’re going to trust that our investigator Mr. Morgan is going to be able to give us a pretty thorough assessment of what we think someone would be able to prove if they have to, given the facts,” Fleming said. “It’s not really, whose burden is it to prove something. It’s kind of like, the way workplace harassment works, if there’s someone that says, ‘Hey I feel uncomfortable because of this,’ the burden is really on the employer here, the House, and speaker’s policy calls for the House to take steps to try and solve it.”