Capitol Alert

Sexual harassment victims want assurances Capitol investigations will be independent

Pamela Lopez says she’s ready to participate in an Assembly investigation, but she wants assurances that the process will be “neutral and independent of the forces of politics.”

The Sacramento lobbyist, who recently alleged that Assemblyman Matt Dababneh pushed her into a hotel bathroom in Las Vegas last year and masturbated in front of her, sent a list of questions to the Assembly Rules Committee earlier this month, seeking details on how the investigation would be conducted. A waffling answer about whether the Assembly would waive attorney-client privilege with the outside law firm hired to conduct the investigation, according to Lopez’s lawyer, was not satisfactory.

“This is a test of whether they’re really going to be fair,” said Jean Hyams, who is representing Lopez. “They could agree that they’re not going to use attorney-client privilege as a shield with the investigator.”

Since the publication in October of an open letter signed by nearly 150 women ignited a discussion about sexual harassment in California politics, the organization We Said Enough has been urging the Legislature to overhaul a disciplinary process at the Capitol that they argue discourages women from reporting harassment and sweeps complaints under the rug.

A central demand is to move sexual misconduct investigations out of the Legislature’s internal human resources departments – something the Senate is in the process of doing and the Assembly was already doing for some complaints. But members of the We Said Enough movement are raising concerns that by hiring attorneys to conduct the investigations, legislative leaders are giving themselves legal cover to avoid certain disclosures and compromising the promised independence.

“This system does not engender trust,” said Christine Pelosi, legal counsel for We Said Enough.

Hyams said that, with the protection of attorney-client privilege, there is nothing to stop employers from trying to influence an investigation. Having an investigator who is also an attorney for the Legislature creates at the very least an appearance of bias, she said, but victims have no way of finding out whether their employer tried to limit the scope of an investigation or change the findings. Opening up their communications for scrutiny later, she added, provides an incentive for fairness and sends a signal of confidence to victims.

The Senate announced last week that it has hired two law firms to investigate future allegations of sexual harassment, abuse and assault against members and staff, including two ongoing investigations into sitting senators. Those inquiries were previously handled by human resources employees, who many Capitol workers say prioritized protecting the institution over taking their complaints seriously.

Asked at a press conference whether he would be willing to limit the Senate’s attorney-client privilege to make some information about the outcome of investigations public, Senate President Pro Tem Kevin de León said it was a “possibility.”

Benjamin Wagner, the former U.S. attorney for the Eastern District of California and one of the lawyers who will conduct investigations for the Senate, said waiving all attorney-client privilege before an investigation has even begun is not sensible or effective. There are many good reasons why things should not be made public, he said, such as information that could become the basis of personnel actions the Senate must legally keep confidential, or witnesses who don’t want others to know they’ve spoken to an investigator.

“If you want things to be a real investigation and a not a show...” Wagner said, “any good investigation is not going to be conducted in public.”

The Assembly has said it refers any sexual misconduct cases “deemed serious” to an outside law firm and will continue to do so. It has declined to disclose which law firms it uses. Kevin Liao, a spokesman for Assembly Speaker Anthony Rendon, acknowledged those investigators are hired as attorneys for the Assembly.

“However, it should be made clear that they are not hired to provide advice to the Assembly,” he said in a statement. “They are hired exclusively as fact finders. It is not easy to say what remains privileged because it is governed by existing case law, not Assembly policy. We are working with Legislative Counsel and the Senate to establish guidelines that will protect victims and others during these investigations.”

Barbara Bryant, who teaches sexual harassment law at UC Berkeley School of Law, said it is typical that when an employer brings in an investigator, they are the one that gets the information. But she understands why that might cause concerns for victims. She said that when an investigation finds there has been misconduct, harassers “have to face some kind of public censure.”

“One of the final steps has to be that it’s not kept secret,” she said. “If it’s just going to stay quiet ... we really lose at the end all benefit that would have been done.”

Bryant said there could be a problem if the Legislature tries to invoke its attorney-client privilege with the investigator to “skip some of the last steps.” She said it needs to be clear from the outset when that privilege would be used, so it is not decided case by case. She recommended that a committee, with guidelines for discipline based on different kinds of behavior, review each inquiry and make sure appropriate punishments are carried out.

We Said Enough has pushed for even more policies to safeguard the neutrality and transparency of investigations, including making legal resources available to both the accuser and the accused, and putting in place whistleblower protections so that witnesses could not be punished by the Legislature for what they might reveal during an investigation.

“What do they mean when they say independent?” Pelosi asked. “That is not the same thing as having someone who is truly, legally independent.”

Alexei Koseff: 916-321-5236, @akoseff