Sexual Assault & Harassment

This week’s episode of The CAP·impact Podcast features a case study in one of Ray LeBov’s Rules for Effective Lobbying: not letting the perfect become the enemy of the good. Today we are talking with folks from two organizations that regular readers and podcast listeners will be familiar with – the California Partnership to End Domestic Violence and the California Coalition Against Sexual Assault. Specifically, we talk with the Partnership’s Jacquie Marroquin and CALCASA’s John Finley about their organizations’ joint effort to secure a $50 million allocation in the General Fund of California’s state budget for sexual assault and domestic violence prevention programs. It’s an effort that we talked with John Finley about previously.

Since the California Legislature passed the state budget last week, what better time than now to check in with Jacquie and John about how the effort panned out. You can likely figure out, in rough terms, what the outcome was, just based on the title of today’s show alone. But don’t tune out because while the title gives away the overall outcome, it doesn’t spoil any of the details.

Today’s show also features an explanation of the lobbying process for California’s state budget from McGeorge Capital Lawyering adjunct professor Chris Micheli.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

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And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Thanks for listening to today’s show.

 

 

 

A first response to reports that California taxpayers have paid roughly $25 million in the last three years to settle sexual harassment-related cases is outrage. A closer look reveals a more complex picture. LAPD paid, on average, $30 million annually from 2012-2014 to resolve legal claims involving officers’ conduct. Since 2006, CHP has paid over $25 million in similar claims. Undoubtedly, California taxpayers pay far more than these amounts to resolve claims of negligence and misconduct by state employees. Taxpayer funded sexual harassment settlements aren’t anomalies; they’re part of a broader structure where the state, as employer, pays for injuries caused by employee actions.

Why does the law make employers pay for bad acts by their employees? One reason is that employers direct and control their employees’ actions, making them partially responsible for employee actions within their job’s scope. When employers have to pay out money for employees’ bad behavior they should be motivated to make the appropriate changes.

Another reason is that the purpose of civil damages judgments is to compensate victims – not punish perpetrators. Employers are in a better position to buy insurance or accumulate enough funds to pay for injuries.

What about employees who’ve engaged in egregious behavior? Shouldn’t they be punished by paying? In civil suits, juries may award punitive damages to punish an employee who’s found to have acted in a way that’s more blameworthy than workplace negligence or misconduct (acting with oppression, fraud, or malice); generally the employee, rather than the employer, pays. If the employee’s conduct is criminal, then they may be charged and, if convicted, punished with fines or imprisonment.

Back to sexual harassment…isn’t that bad enough that the perpetrator, rather than taxpayers, should pay? Again, a closer look reveals that it’s more complicated than it seems. For one, sexual harassment settlements are just that – settlements. They’re not adjudicated liability.  Even if we’re talking about sexual harassment judgments, the reasons mentioned above still apply.

Additionally, and importantly, another consideration is the impact that an “employee pays” rule would have on state employees doing their jobs, interacting with other employees and members of the public every day.  We want to deter bad behavior but we don’t want to “over-deter” it with a rule that makes employees frightened to act because if they – maybe – cross a line, or someone claims they did, they’ll be paying for a lawyer and a judgment, if it comes in. UCLA Law School Professor Johanna C. Schwartz, who conducted the aforementioned study of police department payouts, concludes that in most instances the departments, rather than the officers, should pay for misconduct claims because requiring officers to pay would result in this type of over-deterrence. She recommends transparency of payouts, and making the departments pay from their budgets rather than charging the taxpayers from the general fund..

Another note on “over-deterrence” comes from the Constitution. The Constitution provides the President absolute immunity from lawsuits for damages arising from his actions as President.  These lawsuits include claims by an employee of sexual harassment. The Supreme Court has also interpreted the Constitution to give different levels of immunity to different types of government officials. In doing so, the Court explains the Constitution creates “breathing room” around the actions of government officials, shielding them from paying damages even when conduct violates the law:

Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.”

Most state employees are not government officials entitled to constitutional immunity. Even state government officials entitled to immunity may lose it if their actions violate clearly established law. Nevertheless, the over-deterrence concern runs through legal and policy judgments about who should pay for employee misconduct and explains why often, when the employer is the state, the taxpayers pay.

 

 

 

The Partnership, the brain trust, and the activists working to end domestic violence

This week, I’m posting another conversation I had with Erin Scott – Board Chair of the California Partnership to End Domestic Violence. As we allude to in our conversation, she is also the Executive Director of the Family Violence Law Center, which is based in Oakland, CA.

Today’s conversation is related to last week’s chat that I had with Erin about The Partnership’s effort to double funding for domestic violence, which would allow for more prevention efforts in California. It’s also a follow up to the conversation we had a while back with Beth Hassett, the CEO and Executive Director of WEAVE, and the work that they do with coalitions, including The Partnership. We talked, in a broad sense, about the work The Partnership does to achieve its vision of “a California free of domestic violence.”

In addition to the coalition work that The Partnership does with its members all across California, they lean on and assist other ally organizations that don’t necessarily work on domestic violence issues but do work on issues that overlap with domestic violence like sexual assault, immigration, employment law, economic security, and many other issues. When thinking about useful tools to change public policy with, a brain trust of other experts that know the issues that overlap with yours inside and out is a very good tool to have.

The other thing that stands out to me about how The Partnership works is that their approach to public policy is designed to minimize unintended negative consequences of policies aimed at eradicating domestic violence. The process by which The Partnership does this is by pulling in input from their members all over California, which helps ensure that its policy decisions don’t inadvertently hurt some of its members. Erin said it better than I did,

One of the great things about that amount of input is … my agency is in Oakland, and something that might be very beneficial to my agency in Oakland might have a negative impact in a rural area that I might not think of if it was just me on the phone giving that input to The Partnership.”

It’s this balancing act that The Partnership pulls off – balancing the need and conditions of its member agencies and the domestic violence survivors that they serve – between the urban and rural parts of the state that I find special.

To learn more about CPEDV, please visit their website and specifically, their page on their policy priorities.

To keep up to date with the work The Partnership is doing, you can check out their page on Facebook and you can follow them on Twitter, @cpedvcoalition.

You can also follow Erin’s organization on Facebook and Twitter, @FamilyVLC.

 

 

 

As I’ve discussed before, the #MeToo and We Said Enough movements are starting to bring change to the California legislature’s persistent culture of sexual assault and harassment. That process of bringing change has been slow, perhaps too slow.

Furthering that concern are the reports about state Senator Tony Mendoza. He is under investigation for sexual harassment and misconduct and agreed earlier this month to take a paid leave of absence. However, after taking his leave, he has returned to the Capitol to work on legislation as well as attend and host events. He’s remained active in his district as well, posting pictures from a boat tour he hosted for high school seniors this past weekend. It needs to be noted that he has consistently denied the allegations against him. His actions – which fly in the face of the spirit of, if not the letter of, taking a leave of absence – are in line with these denials.

Mendoza’s actions led to current Senate President Pro Tem Kevin De León stating that Sen. Mendoza “does not have an understanding of the gravity of the situation with no decency and little respect for the institution.” My feeling is that statement driven as much by De León’s need to create space between the sexual harassment scandal that came to light while he was Pro Tem and the rest of his record in the California legislature if he wants to have any chance of being competitive in his campaign against incumbent U.S. Senator Dianne Feinstein as it is by outrage at Sen. Mendoza’s actions.

That leads me to an interesting report by Melanie Mason of the Los Angeles Times about local Democratic Party activists who are asking candidates “in explicit terms to divulge any history of sexual harassment.” This development could be a tipping point in changing the culture in the California Legislature and rooting out bad actors.

I’ve worked with candidates and shepherded them through the party endorsement process in the past. Questionnaires sent to candidates by local party clubs are the first, and sometimes the only, step in gaining that group’s endorsement. That endorsement means access to volunteers, it means potential campaign contributions, and it makes securing the party’s endorsement easier. When it comes to earning the party’s endorsement, these local club endorsements are beneficial because they send delegates to the party convention who are bound to vote for the candidate their club endorsed. By racking up club endorsements it becomes much easier to get the requisite number of votes at convention to receive the party endorsement. That’s the background to why these endorsements matter. The main reasons they matter are the access to volunteers that their endorsements bring, and more importantly, the potential access to money.

Campaigns run on volunteers. They are the foot soldiers who are out knocking on doors and calling voters. The more volunteers that a campaign has access to, the more voters it is able to directly contact. But these local clubs also collect membership dues and fundraise and can donate to candidates’ campaigns. Party endorsed candidates – and again, local endorsements help lead a state party endorsement – can receive contributions from the state party. More importantly, the state party can raise unlimited amounts of money, and through independent expenditure councils (I.E.’s), spend unlimited amounts of money. If sexual harassment becomes a line in the sand for local activists there is potential for incumbents who have sexual harassment in their history to lose support that they previously had. If that happens, volunteers go to other campaigns or stay home, money for direct mail or TV or radio ads dries up, and I.E.’s either disappear or fail to materialize.

All of that combines for a much harder reelection bid, and potentially, lead to a new wave of elected officials replacing an older crop of bad actors.

The Partnership’s Push to Increase State Funding to Prevent Domestic Violence

As a heads up, this podcast was recorded early last week, before Governor Brown revealed his January budget proposal. Some of the conversation is dated in that regard, now that this post is going up after the budget proposal was revealed. That aside, the conversation I had with Erin Scott – Board Chair, California Partnership to End Domestic Violence (The Partnership) – is still very much relevant.

Erin Scott – Board Chair, California Partnership to End Domestic Violence – sitting down with Jon Wainwright at The Partnership’s office in Sacramento.

Funding for domestic violence work in California has remained steady for the past few years at roughly $20.6 million annually. That funding comes out of the General Fund. and covers emergency response for domestic violence survivors and has become a part of California’ social safety net. It’s essential funding, but there’s more that could be done. Put another way, current funding only allows nonprofit organizations that serve domestic violence survivors to react to the problem of domestic violence. The Partnership is leading a push this year to double the amount of money in the General Fund being spent on domestic violence work with the new $20.6 million being spent on domestic violence prevention and addressing the longer term root causes of the issue.

As I mentioned before, our conversation was recorded before the budget proposal was revealed. Since then, the Governor’s budget proposal has been revealed, and the state’s investment in domestic violence crisis services remained steady at $20.6 million. In a statement following the announcement of the budget proposal Kathy Moore, Executive Director for The Partnership said,

We appreciate the state’s consistent investment … over the last 10 years,  but it’s simply not enough. […] On any given day, about half of the 5,410 domestic violence victims being served in California access emergency shelter, while the other half receive non-residential services – things like legal assistance, children’s counseling and other complimentary services. Yet average data also shows there are over 1,086 unmet requests for services every day. Continuing to band-aid these families crises with inadequate resources isn’t the solution. Victims are telling us they need more.

No budget fight in the California Legislature is easy. The level of difficulty is only exacerbated when an organization is fighting for General Fund dollars – of which a minimum of 40% are already constitutionally earmarked for K-12 education. We said in the podcast that the funds The Partnership is going for comes out of one pot. It’s more like the funds are coming from half a pot, and there are numerous other groups angling for those same dollars. While Erin noted that “it’s never the perfect time for this kind of request,” I see a couple trends that point towards this being a good year to make the ask to double the funding for domestic violence work.

The first of those is the windfall – or surplus as some others are calling it – in this year’s state budget. It’s easier to ask for more funding in a year when there is more money available to the state to spend. The other trend that could help The Partnership is the #WeSaidEnough movement that has taken the California legislature by storm. While the issues of domestic violence and sexual harassment and assault in the workplace are most certainly not the same, my feeling is that the return to focusing on victims, and victims’ rights, and getting those victims the help that they need puts the political winds in a more favorable position for The Partnership in their effort to get the funding that agencies across California to start being more proactive, start addressing the long term root causes of domestic violence, and, hopefully, start reducing domestic violence in California.

Stealthing

For today’s podcast, I sat down with Erinn Ryberg (McGeorge Class of ’13), Leg Director for Asm. Cristina Garcia, to discuss one of the bills her office worked on last year, AB 1033, which addressed the issue of stealthing. As Erinn describes it, “It’s a new name for something that’s been going on for decades.” The bill did not make it out of the Senate last year, but will very likely be coming back in 2018.

Stealthing is when, during sex, one partner – without the consent of the other partner – lies about using a condom or birth control, tampers with a condom, or removes a condom. It’s an issue that affects heterosexual and same-sex relationships, and again, it’s not a new issue. It’s only just being addressed now due to a combination of the practice having a name and continued rise in STD rates. AB 1033, initially, made stealthing an act of rape. That was later dropped down to sexual battery. You’ll need to listen to the podcast to learn why.

That said, AB 1033 was, at first, not about stealthing. It did not have anything to do with sexual battery or rape. It was an Indian gaming bill. This makes it a clear cut example of a gut-and-amend bill. It also raises the issue of germaneness, which is a rule that states amendments to a bill have to address the same issues as – or be germane to – the original bill. It was an issue that was flagged on AB 1033, but didn’t stop it from moving forward. It would not have necessarily stopped the bill dead in its tracks either in terms of its ability to get passed – from a rules perspective. However, the germaneness issue would come up were the bill to be challenged in court. Erinn and I talked for a while about the numerous issues that opponents had with the bill, and given our conversation, I think it would be safe to assume that germaneness might just be the beginning of the legal challenges AB 1033 would’ve faced.

We also talked at length about the procedural hurdles that the bill faced, the most notable of which was a committee amendment that bordered on being a poison pill.

Undoubtedly, this will be an issue to keep an eye on in 2018.

 

 

 

Recent action at the state, federal, and private corporate levels provides a window into the many ways to attack the problem of nondisclosure agreements in sexual harassment settlements.

Bar Nondisclosure Agreements in Settlements

A decade ago, the California Legislature changed the law to bar nondisclosure agreements in settlements of certain serious sexual abuse claims. The Legislature expanded it in 2016 to cover other types of claims with the passage of AB 1682. Now, Senator Connie M. Leyva (D-Chino) has announced her plan to introduce a bill to ban nondisclosure provisions in settlements of a broader list of sexual assault and harassment claims when the Legislature reconvenes in January. A similar bill is pending in the New York Legislature.

Remove Tax Deductibility of Payments if the Settlement Includes an NDA

In Congress’s new tax plan, there is a provision that takes away the business tax deduction for sexual harassment settlements that contain nondisclosure agreements. In the New York Times, University of Chicago Law School Professor Daniel Hemel called it “a nudge, not a hammer,” because most businesses will likely forego the deduction when forced to a choice.  It is also important to note that while the new provision impacts businesses, it does not affect government entities, such as the California Legislature.

Bar Mandatory Arbitration of Sexual Harassment Claims

Employers’ use of mandatory arbitration provisions has mushroomed over the last decade.  Now, over half the non-union U.S. employees are subject to such clauses.  In a series of cases, the U.S. Supreme Court has upheld employers’ rights to impose arbitration requirements, finding that federal law forbids states to limit them.  Given these holdings, a change in the law at the federal level is required to restrict employers’ use of arbitration provisions to keep women claiming sexual harassment out of court.

Now, California Senator Kamala Harris is one of several sponsors of a bipartisan bill the federal level that aims to end sexual harassment secrecy another way – by forbidding terms of employment contracts that require confidential arbitration, rather than an open lawsuit, for sexual harassment claims. The bill is co-authored by Rep. Cheri Bustos (D – Ill.) and Sen. Kirsten Gillibrand (D – N.Y.). According to Marina Fang’s reporting, the “Senate bill is also backed by Sens. Lindsey Graham (R – S.C.), Lisa Murkowski (R – Alaska)” and the “House version has support from Reps. Walter Jones (R – N.C.), Elise Stefanik (R – N.Y.), and Pramila Jayapal (D Wash).”

Private Action Instead of Legal Change

And a change in the law is not always necessary to address a problem like secret settlements, if powerful corporations decide, or can be nudged, to change on their own.  Microsoft recently announced that it will no longer force women alleging sexual harassment into mandatory arbitration.

Misconception Monday – Ethics

Hello, and welcome to Episode 5 of my Misconception Monday series. In this series of podcasts, I identify and dispel common misconceptions that are related to the many aspects of the California legislative process.

Today we’ll be moving away from podcasts on common misconceptions as they relate to bills. If you want to refer back to those, you can always go back and listen to my podcasts on bills, bill deadlines, bill referrals, and bill amendments.

Today we’ll move in to a topic that ties in to the news about the sexual harassment that has been going on in the Capitol, both here in Sacramento and in Washington, D.C.. The topic of today’s podcast is common misconceptions about legislative ethics.

Relevant to the ongoing conversation about sexual harassment in the Legislature are the following common misconceptions that I call out in the podcast.

One misconception is that both houses of the Legislature have adopted a formal standard of conduct for their members. In fact, only the California State Senate has adopted an official code of conduct for its members. The Assembly has not adopted one.

Another misconception is that only a court of law can remove a legislator from office. Actually, the California State Constitution, Article IV, Section 5 (a) (1) reads:

Each house of the Legislature shall judge the qualifications and elections of its Members and, by rollcall vote entered in the journal, two-thirds of the membership concurring, may expel a Member.”

So it is the members of the Legislature, and not a court of law, that can remove a member from office. You can also refer to a post by my colleague, McGeorge Professor Leslie Gielow Jacobs, on disciplining elected officials to learn about some other ways elected officials can be removed from office.

I hope you enjoy today’s post and podcast on common misconceptions related to legislative ethics.

 

 

 

I spoke about this issue yesterday on ABC 10 in Sacramento with Giacomo Luca.

Matt Lauer and Garrison Keillor are the most recent men terminated by their private employers because of credible allegations of sexual misconduct.  Contract terms set out the ability of the media outlets to discipline these employees.  But what of state and federal elected officials, who are put into office by a vote of the people and serve the citizens rather than a private employer?  A constitution – again either state or federal – is what sets out the ability of a legislature, or the people, to discipline elected officials.

Article IV, Section 5 (a) (1) of the California Constitution provides that the Assembly or Senate may expel a member by a 2/3 vote, without specifying particular grounds for expulsion.  Proposition 50 passed by the voters in June 2016 amended the Constitution to give both Houses the power to suspend members with or without pay, with a recitation of reasons and by a 2/3 vote.  The California Constitution also provides a procedure for the voters to recall an elected official prior to the end of the official’s term. That can be done by means of a popular vote.

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”  The Constitution does not specify grounds for expulsion but in practice the grounds have involved disloyalty to the nation or corruption.  Censure is a less severe form of disciple, imposed by a majority vote of either House, which states disapproval of a member’s behavior but does not remove the official from office or limit the official’s powers.  There is no federal voter recall procedure, and impeachment, available against the President, government officials, and judges, does not apply against Congress members or Senators.

 

 

 

The Assembly Rules Subcommittee on Harassment, Discrimination, and Retaliation Prevention and Response met yesterday to discuss how the institution will address and change the Assembly – and Senate’s – policies to address and fix the pervasive culture of sexual harassment in the Building.

Earlier this week, Jon Fleischman gave a fairly comprehensive rundown of the allegations that have been dominating the news related to California’s Capitol. He also pointed out a procedural approach and four potential policy fixes. He called on Republicans to urge Governor Brown to call a Special Session to address this issue, and notes potential bills the Legislature could consider in that Special Session:

  • A bill to establish that a law enforcement agency (perhaps the California Highway Patrol) has jurisdiction over investigations of allegations of sexual harassment in the Capitol. The idea is to put someone in charge of such investigations who is not beholden to legislators.
  • The Melendez whistleblower protection bill that has been shoved into a legislative drawer for years.
  • A bill to make sure that the legislature is subject to the California Public Records Act, like every other part of state government.”

The Sacramento Bee reported yesterday that Assembly Member Kevin McCarty is floating that he may introduce legislation that would require lawmakers, not taxpayers – as has been the case in settlement payouts for sexual harassment settlements – to pay for their sexual harassment settlements.

“We could deduct their pay. If they’re a former legislator, we could go after them in the judicial process,” McCarty said. “Some people have suggested you don’t pay out at all. But that would mean some people who are harmed, harassed, have zero recourse.””

But perhaps the most important policy idea was raised in a question by Asm. Eloise Gomez Reyes. She asked Rules Committee staff about the number of complaints in the past three and half years registered against members of the Assembly. The response was that complaints were not tracked at allThis fact is stunning. Asm. Vince Fong followed up on her questions, asking, “Isn’t it a problem that we don’t track complaints?” Staff replied it was a valid point.

Among the arguments for tracking the number of complaints were: by tracking complaints, it helps set the tone that this conduct is unacceptable; the number of complaints can be used to identify trends and potentially get ahead of issues and address them before they become major issues.

Changing Rules Committee policy – if not changing the law to enshrine in statute – to ensure the number of complaints lodged against members of the Legislature and senior staff are tracked is critical and a very necessary first step.

There are other serious issues that were raised in hearing as well, such as: records of complaints and investigations are only held for six years – in the Assembly – even though members can be in office for twelve years; lack of confidence in the system’s ability to protect staffers who come forward with complaints; and lack of a level playing field for the complainant and the person the complaint is being lodged against.

There is also a lot from yesterday’s hearing that I’m leaving out. That is not to say that those other portions of the hearing are not important. Everything brought up in the hearing is incredibly important. However, I wanted to focus on the first steps the Assembly – and the Legislature more broadly – are taking and can take to make the necessary systemic changes to make the Building a safe work environment. Yesterday’s hearing is one of those first steps. Addressing the records issues – tracking complaints and retention of those records – is another critical first step. But these are just first steps on a long, long road to regaining the trust and confidence of the staffers who work in the Building and the voters who send elected officials to it.