Four steps state legislatures can take to tackle harassment

Over the past several months, harassment allegations have rocked statehouses across the country with no end in sight. In our modern day of viral hashtags and instant media consumption, the movement to shift the long-standing power paradigm has made its way into the hallowed halls of legislatures across the nation — and with great force.

For example, in Arizona, an independent investigation conducted by Craig Morgan recently led to the ousting of a Republican lawmaker accused of a pattern of harassment. In Colorado, the state house voted to expel a Democratic lawmaker after an investigation found that 11 allegations against him were credible. Similar episodes have taken place in Minnesota and New York, and dozens of other states have taken up the issue by revamping their policies and procedures.

{mosads}In the wake of these reports, legislatures can take a proactive approach to ensure that everyone is treated with respect and dignity in the workplace.

Adopt a policy — and follow it

By far the most important step a legislature can take is to adopt and follow a formal policy outlining the specific prohibited conduct, and how the body will investigate and handle harassment allegations. Those who work at a legislative institution — elected officials, employees, lobbyists, and even visitors — should know in advance what their rights and responsibilities are and how the institution will address any issues that arise.

First, the policy should be plainly written and easily understandable to anyone who reads it – avoid legalese. Formal policies are unhelpful if they are inundated with unintelligible jargon. Comprehensibility isn’t just a laudable goal in its own right; it also facilitates the reporting and investigative processes. In our experience, individuals who have critical information about a complaint, or a complaint itself, are more likely to come forward if they understand the process for reporting and investigating harassment allegations.

Second, the policy should be detailed. Those subject to the policy, or its beneficiaries, should know not only what conduct is prohibited, but the process for reporting, investigating, and if appropriate, disciplining one who violates the policy. At a minimum, the policy should explain:

• everyone’s rights and responsibilities
• how a formal complaint is made and to whom
• how the decision of whether to open a formal investigation is made
• how the investigation will be conducted
• who makes the final decision on remedial action
• what form remedial action can possibly take

Train employees on the policy and procedures 

Once policies and procedures are developed and implemented, introduce and educate employees on them clearly defining how the policies and procedures will govern and protect, what their rights and responsibilities are, and the consequences for shirking them. Repeatedly training is the only way to ensure employees know what the expectation is of them in the workplace. Training should be:

• conducted annually
• provided every time a new employee or legislator begins a term of employment
• conducted at the beginning of every new legislative session

Investigations must be independent, thorough and fair

Legislatures must take harassment allegations seriously. This does not mean that every complaint requires the launch of a full-scale, formal investigation, complete with pomp and circumstance. But it does mean that if there is reason to believe a complaint has merit beyond a formal screening phase, the process should move forward. And once the decision to move forward is made, the investigation must be independent, thorough, and fair:  

Investigative decisions should not be in the hands of partisan officials. Ideally, at minimum, the legislative body should appoint a bipartisan committee to screen allegations of misconduct and determine whether further investigation is warranted. The committee should not include sitting legislators. 

Once the decision to move forward is made, the committee should engage an independent group that has investigative experience to conduct the formal investigation and report findings. Usually an experienced lawyer with no lobbying or other business before the legislature is the best fit, otherwise, the perception of partisanship could taint the investigative process. 

The investigation must also be painstakingly comprehensive. There is no other way to conduct an investigation. Do not trade accuracy for speed. The investigative team must be given the freedom necessary (within reason) to conduct the investigation as they see fit, and work closely with the appointed bipartisan committee to effectuate the goal of any investigation: to discover the truth. 

Investigators must go into their work without having any preconceived ideas about what happened or whether a complaint is likely to have merit. Their conclusions must be based on the evidence they gather, and not on the public’s perception or their own biases or prejudices. Careful thought must be given to the choosing of an investigative team free from any influence beyond the desire to discover the truth.

Prepare a report

Once an investigation is complete, the investigative team should author a comprehensive report that properly comports with the applicable law related to the disclosure of information. To the extent the law allows, the report should detail the policies and procedures at play, the investigative process, the findings made, the evidence on which those findings rely, and any other relevant conclusions. The report should also be easily understandable to any reader. 

The report should also be released to the public. This may require redacting certain names and other details to protect individuals’ privacy, or withholding certain information protected by law. But the public should have access to as much of the substance of the report as legally permitted to foster faith in the investigative process. 

Legislative officials hold a sacred trust. They must work to safeguard the democratic institutions they serve, and a key component of that mission is protecting everyone who walks their halls. A solid policy against harassment, tethered to a clear and understandable procedure for investigating and resolving claims of harassment, will go a long way toward ensuring and protecting those safeguards for generations to come. 

Craig Morgan is a partner at the national law firm Sherman & Howard. He was also hired as the lead counsel to investigate harassment in the Arizona House of Representatives involving Don Shooter.

Christopher Jackson is an attorney at Sherman & Howard who has litigated cases on federal and state elections, campaign-finance law, the First Amendment, the Electoral College, and the Taxpayers’ Bill of Rights, among others. Before joining the firm, Chris served in the Colorado Attorney General’s Office where he represented the state’s senior public officials, including the Governor, Secretary of State, and judiciary.