Concerns over privacy have a select group of lawmakers at odds for how they should reform the statehouse policy on sexual harassment.
A six-member panel set up earlier this year to review changes to the Capitol’s harassment policy is meeting one last time this summer with hopes of crafting recommendations ahead of the 2019 legislative session.
But philosophical disagreements among the committee members — half of whom are Republicans and half of whom are Democrats — is becoming more apparent as they hammer through a list of proposed policy changes outlined in a 235-page report party leaders commissioned earlier this year.
Chief among the disagreements involves how much access lawmakers should be given to investigations into allegations of sexual harassment.
When the Legislative Workplace Interim Study Committee met in a nearly empty committee room on Thursday, members sparred over whether a proposed disciplinary panel should have access to an unredacted investigation report.
Some members of the interim committee said the panel should have this detailed information, especially if its members could be making recommendations to expel a lawmaker from office.
“This is the core of the problem,” said Sen. Bob Gardner, a Republican who represents Colorado Springs. “If we are going to recommend disciplining a member, then it has to be made on information that is complete.
He added: “Down to names.”
Rep. Faith Winter, a Democrat from Westminster, pushed back.
“Knowing the names of the complainants or respondents does not change the facts of the case,” Winter said.
Confidentiality will prevent political bias, she argued, and therefore allow more people to feel comfortable coming forward with complaints.
The committee discussed replacing names in the report with “complainant,” “respondent” or “witness.”
“That would be easier than just the black line through the names when we’re trying to figure out blank said blank to blank at blank location,” said Rep. Kim Ransom, a Republican from Lone Tree.
These concerns were raised by lawmakers during a debate over a resolution to expel Republican Senator Randy Baumgardner of Hot Sulphur Springs, who was accused of slapping the butt of a former female aide multiple times during the 2016 legislative session. Baumgardner was one of five men accused of sexual misconduct during the 2018 legislative session.
A vote to expel Baumgardner from office failed in the Republican-controlled Senate. All but one Republican voted against the expulsion. They cited due process concerns about the integrity of the allegations and the investigation report, which was heavily redacted.
Still, there were concerns that even a redacted version of an investigation report would not hide the identity of the parties involved when relationships are well known among lawmakers who spend 120 days together in Denver every year.
“I work in the Capitol,” Gardner said. “You can put “respondent” and all you want, but everybody sitting on the committee is going to know who that is one way or another.”
Another issue around confidentiality centered on what should happen if a person chooses to release the findings of an investigation.
Sen. Beth Martinez Humenik, a Republican from Thornton who is facing a re-election challenge from Winter in November, said people should be held accountable for releasing this information.
“If you know that this is supposed to be confidential, you don’t breach that. That’s not OK,” Martinez Humenik told The Colorado Independent.
Lawmakers have raised First Amendment concerns with prohibiting the release of these reports. And a former intern who accused Sen. Jack Tate, a Republican from Centennial, of flirting with her released an investigation report to the media to spur action on her case.
But Martinez Humenik said the point of the process lawmakers are going through now is to make sure people can trust the process instead of resorting to public disclosure of confidential reports.
The committee’s official charge is to evaluate policy recommendations. But there are hopes of coming up with a policy proposal, and there is still some optimism among victims’ advocates watching the process.
Raana Simmons, a lobbyist with the Colorado Coalition Against Sexual Assault, said at least lawmakers are considering victims when talking about confidentiality. “These are all really important values to the process.”
Also, on Thursday, committee members agreed to keep the same evidentiary standard currently used when investigating a complaint. That standard is the “preponderance of the evidence,” which seeks to determine if an accusation “more likely than not” occurred. The committee also agreed to fund two full-time employees in a human resources department overseeing how complaints are handled.
One issue that is unlikely to be resolved is who will sit on the panel that makes recommendations for punishing lawmakers. Currently, leaders in the House and Senate make that decision.
House Speaker Crisanta Duran, a term-limited Democrat from Denver, said she wants a committee of lawmakers and experts, including an employment law professional, a victims’ advocate and a human resource specialist. Having experts on the panel, Duran said, will help prevent party-line gridlock and give people more trust that the process won’t be politicized. Winter and Sen. Dominick Moreno, a Democrat from Commerce City, agreed.
But Gardner wants only lawmakers on the panel. If gridlock results, he pointed out, a lawmaker can introduce a resolution to censure a colleague. He said that having only lawmakers on the panel would add credibility to its decisions.
The next and final interim committee meeting is on Oct. 11.