Leaders tout harassment inquiry reform
New policy would waive exemptions for record requests on sex claims
Reversing course in the face of multiplying scandals, state legislative leaders are promising to release more details about sexual harassment claims and investigations involving lawmakers — even as questions remain about how far any new transparency will go.
For years, legislators have closely guarded their records with the Legislative Open Records Act, or LORA, which contains loopholes letting the Legislature shoot down public records requests more easily than any other government agency in the state. Even as four members of the Legislature have been publicly accused of harassment or other sexual misconduct over the past two months, officials have used the law to block reporters — including those from this news organization — from obtaining details about harassment claims.
Now, legislative leaders say they’re ready to let in the light. Lawyers for the Legislature are drafting a new policy scheduled to go into effect in January that will waive exemptions for record requests about sexual misconduct claims and investigations, while stopping short of broader reforms.
The new policy will make public “substantiated claims of sexual harassment or serious misconduct against senators,” a spokesman for Senate leader Kevin de León said in a statement Wednesday. “That will apply to all complaints, including the findings by the independent counsel.” De León recently introduced a system referring harassment complaints to an independent attorney for investigation.
The names of senators who are investigated, as well as records about disciplinary action taken against them, will also be released, the spokesman said. All documents made public will redact the names of accusers and witnesses.
Lawyers for the Senate and the Assembly are working to create a unified standard for releasing information about sexual misconduct under LORA, a spokesman for Assembly Speaker Anthony Rendon said.
“We’re going to break away with the tradition of this institution,” de León, who’s running for the U.S. Senate, vowed in a news conference last week. “Part of changing that culture is to be a more transparent body.”
Government transparency advocates say they’re heartened by the rhetoric but will be watching closely to see how it translates into action.
“Waiving the exemptions that could otherwise apply to that information would give the public a much better understanding of how the Legislature dealt with these complaints,” said Jim Ewert, a lawyer with the California News Publishers Association.
He noted that singling out “substantiated” complaints could be a sticking point — outside lawyers hired by the Senate will decide which complaints are substantiated and which aren’t. And attorney-client privilege could be used to block some details about the lawyers’ work.
Christine Pelosi, the general counsel for the Sacramento anti-sexual harassment campaign We Said Enough, said a more transparent policy would be a good “first step.” But it should result in all complaints, even those that aren’t substantiated by the lawyers, being released, she argued, in order to let the public understand the scope of the problem and allow innocent legislators facing rumors to clear their names.
“The public is going to demand the names, so they’re going to come out eventually,” Pelosi said. “They should rip the Band Aid off and come clean and just get done with it.”
To date, both houses of the Legislature have stonewalled news organizations trying to shed light on sexual harassment. Last month, the Bay Area News Group requested any records relating to discipline of legislators for sexual harassment and any records about sexual harassment complaints over the last 10 years in both chambers. The requests were denied by both the Senate and the Assembly, which each released only the number of sexual harassment investigations that took place in each chamber by year.
In denying the requests, the Rules Committee of each chamber cited a laundry list of exceptions to LORA — most notably, a provision that exempts “records of complaints to or investigations conducted by … the Legislature.” Other news organizations filing similar requests were blocked as well.
“LORA creates a black box with respect to information about misconduct,” said David Snyder, the executive director of the First Amendment Coalition. “The Legislature cut a special deal for itself when it passed this statute that makes it much less transparent in this area than any other elected officials in the state.”
The Public Records Act, which applies to other governmental agencies and elected officials, doesn’t include the same loopholes. Reporters have been able to request and receive information about sexual misconduct claims and investigations in other branches of government. Earlier this year, campuses across the University of California, responding to public records requests from this news organization, released records on more than 100 employees who violated the system’s sexual harassment policies.
Historically, the Legislature has released specific settlements for sexual harassment but almost no other records pertaining to harassment.
While LORA lets legislators decline to release information if there’s an exemption, the leaders in both chambers can choose to waive the exemptions. That’s what they now say they’ll do.
Still, waiving exemptions is up to the discretion of the leaders in each chamber. Their recent decision is a symbol of how LORA typically works: Usually, information gets blocked from reporters, and is only released after political pressure mounts.
“It may be that the Legislature has seen the light,” Snyder said, “but LORA needs to be amended so this information is routinely available.”
De León ducked a question last week about whether LORA as a whole should be scrapped and the Legislature should be subject to the same public records rules as other governmental agencies in California. “That’ll be up to future leaders,” he said.
De León has faced scrutiny for his ties to Sen. Tony Mendoza, a former roommate who’s been accused of inappropriate behavior toward young female staffers. Senate leaders stripped Mendoza of his committee assignments, and de León urged him to take a leave of absence while an investigation takes place, but Mendoza has declined to do so.
Past lawsuits have helped slowly pry open the lockbox LORA puts on records. In 2014, the Bay Area News Group sued the state Senate after it denied a request to release portions of the appointment calendars of two senators who had been indicted and suspended in a corruption investigation. A Sacramento judge ruled that the requested materials were public records, and ordered the Senate to release them.