Capitol Alert

Sexual harassment could stop special treatment for some lawmakers' records

Sexual harassment cases at the California Capitol

Two lawmakers have resigned and one is on leave at the California Capitol over allegations of improper conduct toward women at the California Capitol. At least one other is under investigation, while the Legislature decides what the next steps are.
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Two lawmakers have resigned and one is on leave at the California Capitol over allegations of improper conduct toward women at the California Capitol. At least one other is under investigation, while the Legislature decides what the next steps are.

Sparked by the unfolding sexual misconduct scandal at the Capitol, the California Legislature could this year expand the open records law governing itself for the first time in more than four decades.

Assembly Bill 2032, introduced last month by the Assembly Judiciary Committee, would require the Legislature to release the results of harassment and discrimination investigations into lawmakers or high-level employees when the complaint is determined to be well-founded or discipline is imposed.

Its passage would be a significant – yet incremental – step for a body that exempted itself from the public records act governing other state and local government bodies and has consistently resisted calls for greater transparency.

“It is true that we as an organization are different than any other organization,” said Assemblyman Mark Stone, a Scotts Valley Democrat who chairs the committee that introduced the bill. “That too often has been used as an excuse not to apply rules to ourselves that we apply to other individuals and agencies.”

The Legislative Open Records Act, signed into law by Gov. Jerry Brown in 1975 and never substantially amended, is far more limited in its disclosures than the California Public Records Act, which lawmakers passed seven years earlier, providing the public with access to most government documents upon request.

The biggest difference between them is an exemption for legislative correspondence, according to California News Publishers Association legal counsel Nikki Moore, who called it a “Mack truck-sized hole” in the law.

The Public Records Act requires most politicians and public employees in California to release not only requested communications from their official accounts, but also private emails, text messages and voice mails about official business. But the Legislative Open Records Act prohibits the review of correspondence between lawmakers and their colleagues, staff, constituents and lobbyists.

“When you can access the communications of government bodies, it gives you insight into how they make their decisions,” Moore said. Though some of that is available through public hearings or the official bill file, “you don't get to know the back-and-forth or when amendments were worked out.”

The Legislature has also broadly shielded personnel records, while other agencies are required to disclose complaints against top officials and disciplinary action that they take against employees.

Stone said he’s been looking at the disparities in the two laws for a while and that now is an opportune moment to discuss changing access to some legislative records.

An open letter released last October by nearly 150 women, decrying a pervasive culture of sexual harassment in California politics, prompted revelations of misconduct that have so far led three sitting lawmakers to resign. In response to inquiries from media outlets, including The Bee, the Senate and Assembly last month released a decade of substantiated investigations against members and high-level employees, though not without debate over what documents they might hand over.

“It’s difficult for us to police ourselves,” Stone said, adding that the strict limits of the Legislature’s public records law tends to be driven by the interests of the individual members, not the institution itself.

Stone said he wants AB 2032 to serve as a measure of accountability for conduct in the Legislature, while also pushing the boundaries of transparency in the body. If it is successful, he said he might consider other areas where the law could be expanded.

The proposal attempts to balance protections for accusers – the name and other identifying information for complainants and witnesses would be redacted from any documents released – with a right to know. It creates, for example, an ability to challenge those redactions if the the identity of the accuser is in the public interest.

It would also explicitly require the Legislature to release any settlements arising from harassment and discrimination complaints.

Moore notes that the bill has its own limitations: It allows, but does not require, the Legislature to disclose investigations involving staff members who are not considered “high-level,” meaning they supervise other employees.

“There's a lot of people working in the building and a lot of people interacting with each other, and it's all taxpayer dollars,” she said. “The idea that anyone in the building might be engaging in inappropriate behavior is, to many people, of high public interest.

Even as written, however, it faces significant obstacles. Lawmakers have not traditionally been receptive to changing the Legislative Open Records Act. Several measures in 2011 and 2012 to broaden the law, or instead subject Legislature to the more expansive Public Records Act, did not get a single hearing.

The office of Senate President Pro Tem Kevin de León did not respond to a request for comment. A spokesman for Assembly Speaker Anthony Rendon said he does not take positions on bills until they reach the floor.

“He supports changes that will make people in the Capitol environment safer and improve the culture,” Kevin Liao wrote in an e-mail. “However, the Subcommittee exists to develop a comprehensive proposal to do that, and it’s premature to talk about isolated solutions.”

Because the bill comes from the ten-member judiciary committee rather than a single author, Stone is hopeful that it will carry greater weight with his colleagues. He said public pressure to address sexual harassment at the Capitol may also compel the Legislature to finally act.

“It’s hard to push back on the subject matter that we’re talking about,” he said.

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