Lawmakers considering a more expansive definition of off-premises “legislative business” to toughen up the Minnesota House’s anti-discrimination and harassment policy have a real world example to consider.
However, as a Dec. 21 House Research investigative summary indicated Friday, it’s not clear to what extent, if at all, the alleged behavior of Rep. Rod Hamilton, R-Mountain Lake, might fit that policy.
Revamped last April, House anti-harassment policy “broadly applies to any activity that involves legislative business and to behavior with third parties in the course of members’ legislative work,” according to an investigative summary written by nonpartisan House Research attorneys Ben Weeks and Cristina Parra.
“The incident at the heart of this investigation took place away from the legislative workplace—it is not clear that the parties were ever engaged in anything that could be considered ‘legislative work,’” the Dec. 21 memo states.
“In sum,” it concludes, “it is not entirely clear how the House policy applies to this situation.”
Hamilton was accused of sexual misconduct last April by a sexual-assault victim’s advocate, Emily Schlecht, of Willmar. She reported Hamilton to St. Paul police for unwanted contact inside his St. Paul apartment on April 13. The case was not prosecuted.
While the memo holds back most details for personnel reasons, Schlecht publicly described what happened. In an on-camera interview, she told WCCO-TV that she met Hamilton at the Capitol and that they discussed her own 2015 sexual assault and his advocacy for victims.
She said she accepted an invitation to his apartment that night because there was a snowstorm and Hamilton encouraged her to avoid driving on bad roads. She said she thought she could trust him, so she agreed.
While there, Schlecht said Hamilton stroked her hair and arms and kissed her on the cheek. He did not engage in any intimate contact, but made her feel trapped and isolated, she said. She later filed a police report, she said, because she felt violated by a man in authority and didn’t want that to seem acceptable.
Hamilton denied any misconduct, but self-reported the incident to House HR and issued a statement of apology. On April 26, he was suspended from his committee chairmanship and an investigation was ordered under terms of the House’s new discrimination and harassment policy.
That investigation was conducted by Karen Schanfield and Pamela Abbate-Dattilo of Fredrikson & Byron and cost taxpayers more than $38,000.
Though the Hamilton incident was not discussed, off-premises sexual harassment was addressed on Dec. 14, in perhaps the final meeting of the House Subcommittee on Workplace Safety and Respect.
That subcommittee formed in 2018 to examine sexual harassment at the Capitol and make recommendations to stop it. It is not among committees scheduled to convene in 2019, though a House spokesperson said it could be revived.
At the Dec. 14 hearing, attorneys Parra and Weeks offered several recommendations for revising the policy. One dealt with off-premises interaction between lawmakers or Capitol staffers and “third parties.”
“The House may want to consider whether the policy is intended to cover a situation in which the relationship arises out of legislative work, but the alleged harassment occurs away from the Capitol during interactions that have little connection to legislative business,” Parra and Weeks wrote in a Nov. 30 report submitted to Speaker Kurt Daudt, R-Crown, and to the subcommittee. Weeks and Parra verbally summarized that report at the hearing.
Their presentation also included results of a Capitol community survey conducted between Oct. 4 and Nov. 1. Only 50 percent of House members responded to that survey but 76 percent of Capitol staffers responded.
“One thing that was interesting was that most staff that responded did so within the first day,” Parra told subcommittee members. “So we think there was a real desire to speak out.”
Almost three-quarters (72.7 percent) of respondents said they had never seen or experienced sexual harassment in the legislative workplace. However, when asked where they think it does happen, 26.5 percent said “off-premises events.”
The House’s current anti-harassment policy conceives of harassment or discrimination in the course of “legislative business,” Week said, but the policy doesn’t define that phrase.
Weeks said that, if the policy is expanded, it is best to avoid making it too legalistic. Still, he said, “I don’t think it serves the House to avoid investigating things that happen just because they were on the margins of what we might consider to be legislative business,” Weeks said. “I think we’d rather take a more expansive view.”
“I’m inclined to agree that it should be an expansive definition,” said Rep. Mike Freiberg, DFL-Golden Valley. “Especially because the survey showed the top answer for where the sexually harassing behavior takes place was off-premises events.”
Rep. Deb Kiel, R-Crookston, presided over the Dec. 14 meeting in the absence of the subcommittee’s chair, outgoing House Majority Leader Joyce Peppin, R-Rogers. After the hearing, Kiel was asked if she sees any way to prevent harassment off the Capitol grounds and workspaces.
It would be difficult, she said.
“I think we would have to decide, first of all, what constitutes off-site work and how far you go to mandate people’s personal lives,” Kiel said. “That becomes challenging. It would be nice if we could just tell everybody to behave themselves, but that’s not a reality always.”
‘Doesn’t stay private’
Jean Boler, the attorney who drafted the initial complaint in the groundbreaking 1988 sexual harassment class action Jenson v. Eveleth Taconite Co., disagrees that it would be so hard to do. “It shouldn’t be that confounding,” she said.
Boler said lawmakers wanting to refine policy need look no farther than the corporate world. “Your employer can set those kinds of standards for [off-site] behavior that will limit their liability,” Boler said. “The same way here.”
Corporate case law also exists that tracks the cause and effect of off-premises sexual harassment for which companies are liable, Boler said. And while it’s true that legislators can be fired only by the voters who elect them, that’s no reason to avoid strengthening policy to make clear that off-site harassment is intolerable, she said.
Such an expanded policy could help prevent such incidents from occurring, Boler said.
If nothing else, she added, anyone who violates such a stated policy would only add to his or her own bad press—the one force that can push violators from office. That essentially is what happened to Rep. Tony Cornish, R-Vernon Center, and Sen. Dan Schoen, DFL-St. Paul Park, after they were accused in 2017.
Boler gives the House credit for combating sexual harassment—something the Senate has not worked on with the same visibility. “Certainly they are going in the right direction,” Boler said of the House.
Still, she hopes lawmakers don’t reject the idea of expanding policy to off-site incidents because it encroaches on personal lives. “They can say that’s our private business, but the problem is it’s not,” Boler said. “It doesn’t stay private. It creates liability.”
With respect to the Hamilton case, Boler agrees with the investigative memo that it’s difficult to say whether his behavior stemmed from legislative business, at least based on what is detailed in the official summary.
In their summary memo on the Hamilton case, Weeks and Parra suggest that the House refine its Code of Conduct to clarify what constitutes “sound judgment” by members. It also recommends amending House rules to allow an ethics complaint to be brought even when the Legislature is adjourned.
While the Hamilton memo is silent on whether the harassment policy should be strengthened, it does suggest that the results of investigations prompted by the policy should be forwarded directly to the Ethics Committee.