Subcommittee silently makes sexual harassment recommendations; Legislative Council must act

OLIVIA COVINGTON FOR www. theindianaialwyer.com

A legislative subcommittee has quietly issued new recommendations for how Indiana’s Legislature should respond to complaints of sexual harassment by legislative employees, but it’s still unclear whether the Legislative Council will meet next week’s statutorily-mandated deadline to officially adopt the recommendations.

The Legislative Council’s Personnel Subcommittee has released a proposed report that includes two recommendations for ways in which the Legislature can improve its sexual harassment policies: amending legislative ethics rules and mandating training for legislators and members of the legislative ethics committees. The recommendations were developed pursuant to House Enrolled Act 1309, which required the subcommittee to develop sexual harassment prevention and investigation recommendations and the full council to approve those recommendations by Nov. 20.

In light of the #MeToo movement, HEA 1309 represented an initial legislative step toward curbing sexual harassment at the Indiana Statehouse. The bill, authored by Rep. Sharon Engleman, R-Georgetown, mandated that each legislator complete one hour of sexual harassment prevention training each year, as well mandating that the Personnel Subcommittee develop additional prevention and response recommendations.

According to the proposed report, the subcommittee “directed the Staff of the Legislative Services Agency (‘LSA’) to conduct background research related to sexual harassment prevention and prepare proposed policy language for review by the Subcommittee.” LSA’s research yielded four findings, including:

• “Legislators with oversight over legislative staff have existing policies that expressly prohibit sexual harassment of a legislative employee by a legislator and that include the processes and procedures for filing and investigating a complaint;”
• The Indiana Constitution, House and Senate rules and state statute “protect employees, legislators, and other persons interacting with legislators from unlawful sexual conduct;”
• Indiana Code section 2-2.2-3-9 “treats sexual harassment prevention instruction as an entirely separate subject from ethics instruction” and does not require additional training for members of the ethics committees, and;
• “The General Assembly has a legal duty to protect legislative employees from sexual harassment by legislators.”

According to the report’s findings, the House and Senate employee handbooks prohibit sexual harassment and provide that reports of such harassment should be made to the chief of staff, chief counsel or clerk of the House, and the immediate supervisor, majority chief of staff or secretary of the Senate. LSA and Indiana’s fourth legislative employer, the Indiana Lobbyist Registration Commission, include similar provisions in their personnel rules.

The subcommittee’s first recommendation would build on those existing policies by amending the language in the House and Senate codes of ethics to prescribe a clear reporting process. In the House, sexual harassment complaints would be made to the speaker, while Senate complaints would be made to the president pro tempore. If either the speaker or the president pro tem are the subject of the complaint, then a complainant would contact the majority caucus chair in the appropriate chamber.

The amended ethics rules would further explicitly define sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature by a member” that is made as a quid pro quo employment expectation or creates a hostile work environment. The proposed language would also explicitly prohibit retaliation for either filing a sexual harassment complaint or participating in a subsequent investigation, and would require confidentiality for the complainant/victim “to the extent possible.”

The House and Senate ethics committees would be permitted to investigate complaints made to the legislative leaders. The subcommittee report notes that current Indiana statute requires the ethics committees to base a finding of sexual harassment on “competent and substantial evidence,” and subcommittee members urge the Legislative Council to approve the continued use of that standard. The subcommittee also notes that while independent investigators may sometimes be beneficial, the decision to use an outside investigator falls within the discretion of the ethics committees.

Looking to the second recommendation, subcommittee members are urging the council to further amend I.C. 2-2.2-3-9 – the statute amended in 1309 – to merge the mandatory sexual harassment prevention training into the mandatory legislative ethics training. A proposed bill attached to the report would add language requiring that, “The ethics instruction required in this section must cover this article, the house and senate ethics rules, and other relevant statutes. Of the two (2) total hours of ethics instruction required between general elections, one (1) hour must be devoted to sexual harassment prevention instruction.”

Further, the subcommittee is recommending that members of the ethics committees receive additional training “designed to assist them in their responsibilities.”

“This training should focus, at a minimum, on how to end disrespectful conduct, how to handle complaints, the investigation process, anti-retaliation rules, and related matters,” the report says.

HEA 1309 also required that House Speaker Brian Bosma, former House Minority Leader Terry Goodin, former Senate President pro tem David Long and Senate Minority Leader Tim Lanane each appoint a legislator to serve on the subcommittee solely for the purpose of developing the sexual harassment recommendations. According to a Bosma spokeswoman, those four appointed legislators – Reps. Holli Sullivan and Cherrish Pryor and Sens. Liz Brown and Karen Tallian – met in executive session Nov. 7 and adopted the report.

Indiana Lawyer attempted to watch the Nov. 7 meeting via the General Assembly’s livestream, but was told that because the meeting was an executive session, it was not open to the public.

Bosma’s spokeswoman also said the Legislative Council has not yet set a date to consider the recommendations, and she did not comment on whether the eventual meeting will be held by the Nov. 20 deadline.