Amid sexual harassment concerns, lawmakers consider how to check their own power

Against the backdrop of a pervasive culture of sexual harassment at the Capitol that regularly goes unchecked, Texas lawmakers are grappling with how to overcome a particularly thorny part of governing: how to check their own power.

Calls for independence between sexual misconduct investigations and those in power have grown in recent months, and experts and several lawmakers agree that impartiality is crucial for building trust in a reporting system at the Capitol, where repercussions for elected officials are virtually nonexistent. But efforts to establish that independence — which could require officeholders to give up their current oversight over investigations — will likely face political challenges in persuading lawmakers to hand over power to a third party.

Any independent entity investigating sexual misconduct at the Capitol would need the power to truly hold elected officials accountable, several lawmakers and legal experts said. That could mean sanctions against officeholders that their colleagues may be unlikely to pursue.  

“It cannot be officeholders policing officeholders,” said state Sen. Sylvia Garcia, D-Houston, who is among those calling for an independent investigative agency.

Currently, employees in the Senate would report sexual misconduct allegations to the chamber’s secretary, Patsy Spaw, or to the human resources department. Spaw has testified that she could handle minor incidents herself but would report more serious allegations against senators to the lieutenant governor and the chair of the Senate Administration Committee — both elected officials.

Under the House’s policy, which lawmakers recently revised, complaints against state representatives may be reported to the House Administration Committee chair, another elected official. Employees can also file complaints with the Texas Workforce Commission, which is charged with settling or resolving discrimination cases and can even file civil lawsuits. But that entity cannot directly impose sanctions against elected officials.

Spaw has indicated she may bring in outside attorneys to help with investigations, and the House's revised policy indicates outside attorneys or investigators may be used "if necessary." But to alleviate concerns with existing reporting procedures that leave investigations in the hands of elected officials, lawmakers have proposed several ways to establish what they say is needed independence in investigations. Those proposals range from a review panel that doesn’t include lawmakers to a new state entity comparable to the Texas Ethics Commission, which regulates political activities and spending.

The creation of an independent investigative body “is a necessary immediate step” for the Legislature to address skepticism in the current reporting system set up for sexual harassment victims, said Chris Kaiser, director of public policy and general counsel for the Texas Association Against Sexual Assault.

“I don't think that you have to impugn the work that any investigators are doing currently to accept the fact that that skepticism itself is preventing people from coming forward,” Kaiser said. “It’s really clear the Legislature has a lot of work to do to build trust.”

Who should investigate?

Texas leaders began voicing support for reviews and revisions to sexual harassment policies at the Capitol a day after The Texas Tribune detailed a wide range of harassment in state politics and the little protection offered to victims through the chambers' policies. Lawmakers and experts have since then pointed to the contrast between news reports detailing sexual harassment and assault and the lack of official complaints in both chambers as a jarring indication of a flawed reporting system.

“Imagine how people feel about talking to an investigator knowing that the investigator has no power and there’s really nothing they can do to the lawmaker,” said Malinda Gaul, president of the Texas Employment Lawyers Association. “The first thing in uncovering all of this is making people comfortable to report it.”

State Rep. Diana Arévalo, D-San Antonio, said in a November statement that she wanted the Texas Rangers to investigate all sexual misconduct reports and for lawmakers found guilty of harassment to be stripped of any leadership roles.

Linda Koop, a Republican state representative from Dallas, said she supported revisions to the House’s policy emphasizing that victims can go through the Texas Workforce Commission’s Civil Rights Division if the alleged harasser was a member, and suggested the commission could serve as an independent investigator with some tweaks to the reporting process. The commission currently is charged with investigating sexual harassment complaints throughout the state, and she believes it would be separated enough from legislators.

“They’re not even in the same building,” she said.

Multiple Democrats have insisted on the need for an entirely new commission. In a statement last December after The Daily Beast reported on alleged misconduct by Democratic state Sens. Borris Miles and Carlos Uresti, state Sen. José Rodríguez of El Paso called on Texas leaders to establish a fully funded investigative body unbeholden to any officeholder.

Garcia has made a similar call, stating that a new entity similar to the state’s ethics commission was needed to be fair to both parties and hold wrongdoers accountable, including through sanctions.

“I think this is different enough and important enough to merit its own attention,” she said.

Other lawmakers have taken to scouring policies in other state legislatures for possible solutions. They’ve pointed to the New York State Assembly, which relies on an independent investigator or counsel to investigate sexual harassment complaints, as a possible model. Others have noted a recent decision by the California Senate to hire outside attorneys to investigative sexual harassment allegations. 

Both of those legislative chambers still leave disciplinary action against lawmakers up to their colleagues. But independent investigations would still bolster confidence in the reporting system, said state Sen. Judith Zaffirini, D-Laredo.

The fear that any investigation would fall victim to a “buddy system” that covers up lawmakers’ actions was among the concerns privately mentioned to Zaffirini, who sits on the Senate committee that is reviewing the chamber’s policy, by women who endured sexual harassment at the Capitol.

“There’s no perfect system,” she added. “But I do think that an independent group will be helpful.”

Ceding control

Creating any sort of independent investigative body to oversee sexual harassment complaints could very likely run into the larger complexities behind management at the Capitol, where elected officials are largely in control of their own offices and can’t be fired.

And questions remain whether lawmakers will be willing to cede their control over investigations or disciplinary action and whether any transfers of power would require a change in statute. That would mean waiting until lawmakers reconvene in Austin next January.

“I think among some legislators an initial gut reaction would be concern about an outside party having any kind of authority over what happens with an elected official, bypassing the electorate,” said state Rep. Donna Howard, D-Austin, who sits on the House Administration committee.

But lawmakers will be forced to confront the swift action other legislative bodies are taking and the national attention the issue has garnered, she added.

“I think right now there would be more acceptance of a third party that tries to remove some of the political implications, good or bad,” Howard said.