Senate President Rob Wagner didn’t create a hostile work environment or retaliate against two Republican senators by refusing to excuse their absences during a walkout that blocked the state Senate from functioning for six weeks, a legislative panel ruled Friday.
Four members of the Senate Committee on Conduct, two Republicans and two Democrats, voted unanimously to dismiss complaints from Republican Sens. Lynn Findley and Cedric Hayden against Wagner over his decision to deny their requests for excused absences while the walkout was underway. That decision affects both senators because a voter-approved constitutional amendment bars lawmakers with 10 or more unexcused absences from serving another term.
Findley and Hayden are barred from serving another term under the amendment, though Findley, whose term expires in January 2025, is among five senators who have sued to block the law. Hayden’s term ends in 2027.
Following the votes, a Wagner spokesman, Connor Radnovich, said the outcome was the right one.
“As the investigator concluded in her report and the Senate Conduct Committee affirmed today, the Senate president acted appropriately and fairly when applying Senate rules during the 2023 Republican walkout,” Radnovich said in an email.
Findley, however, who testified before the votes, had another point of view. He blasted Wagner as a “dictator” and said that under Senate rules his rights are not protected, even though elderly at age 71 and disabled.
“We don’t have a sitting president in a Democratic society. We have a dictator,” Findley said referring to the Senate president. “I have no rights as a sitting member of the Oregon State Senate. I have no rights for recourse.”
He called the complaint process “humiliating” and indicated that if he had known that the complaint process would be so public, with reporters seeking comment from him in recent days, he would not have pursued the issue.
“This is absolutely the worst thing that I’ve ever experienced in my life – in my professional career,” Findley said. “This is a sham of a process.”
Hayden did not testify but responded to an investigation of the complaints through his Salem-based law firm in submitted testimony.
“Senate President Rob Wagner violated long-standing legal protections by denying Senator Hayden’s requests for excused absences,” the letter from Sherman Sherman Johnnie and Hoyt said.
An independent report
Committee members voted based on a 24-page report by Sarah Ryan, an attorney for Portland-based Jackson Lewis P.C., who conducted an investigation for the Legislature. She found that state rules do not protect members of the Legislature in the same way that they would protect employees.
Hayden, R-Fall Creek, alleged that Wagner created a hostile work environment and engaged in religious discrimination by denying his requests to be excused to observe the Sabbath. He also objected to Wagner rejecting his requests for excused time off to care for his disabled daughter, consult with his attorney about the complaint and participate in a federally mandated inspection as a wildland firefighter.
Findley, R-Vale, alleged that Wagner created a hostile work environment by abridging his right to protest and denying his request to attend a church service.
Hayden filed a separate complaint with the Oregon Bureau of Labor and Industries in early May. That complaint is under investigation and will be completed by May 8, 2024, a spokeswoman told the Capital Chronicle.
The Legislature’s personnel rules, crafted in the wake of the #MeToo movement, ban harassment and the creation of hostile work environments or “behavior that is unwelcome and is so severe or pervasive that it either affects a person’s ability to function in the workplace or denies the person the benefits of the workplace.”
The process Friday was typical legislative procedure. An independent attorney investigated the complaints based on Senate rules and the conduct committee decided on their validity.
The co-chairs of the committee – Republican Dick Anderson of Lincoln City and Democrat Floyd Prozanski – and two other senators – Republican Suzanne Weber of Tillamook and Democrat Deb Patterson of Salem – all voted no when asked whether Wagner’s refusal to approve the senators’ absences amounted to retaliation or discrimination against them or whether it created a hostile work environment.
Walkout begins
The walkout started May 3. For the first three days of the protest, Wagner approved excused absence requests from some Republican senators, but on May 5, a Friday, Wagner announced that he would only excuse absences for an “extraordinary circumstance.”
Two senators who were undergoing medical treatment continued to receive excused absences. Wagner also excused Hayden’s absence one day to meet with an investigator about his workplace complaint, as well as requests from other senators to deal with a burst waterline and attend a family member’s funeral. Other senators were denied excused absences because of illness, family health issues, attending religious services, officiating a family member’s out-of-state wedding, visiting out-of-state family and attending a child’s graduation, according to the report.
“President Wagner believed the lack of a quorum substantially threatened the Legislative Assembly’s ability to do its critical duty of funding state government,” Ryan wrote in her report. “President Wagner concluded the extraordinary-circumstances standard was justified to ensure that the Senate and the Legislative Assembly could fulfill their constitutional roles.”
Wagner had scheduled Senate floor sessions for that weekend, meaning Republicans who participated in the walkout hit the 10-absence mark earlier than they would have if the Senate stuck to its typical Monday-Thursday schedule. That decision also contributed to the complaints: Hayden, a leader in his Seventh-Day Adventist church, doesn’t work on Saturdays because of his religious beliefs, while Findley wanted to attend church on Sunday.
Ryan’s investigation focused on Wagner denying excused absences for religious reasons, as she determined early that denying time off for Hayden to care for his daughter or Findley to protest didn’t violate the Legislature’s rules.
She interviewed Hayden, Findley, Wagner and two witnesses she declined to name, and reviewed documents including the written requests for excused absences, denials and news articles about the walkout.
Ryan wrote that Wagner knew Hayden’s religion was important to him, but that he didn’t know Hayden was a Seventh Day Adventist or what Hayden’s faith required for the Sabbath when he denied Hayden’s requests. She added that Findley told her that he doesn’t attend church services every Sunday.
Wagner has continued rejecting senators’ requests for excused absences, most recently during a September session to confirm Gov. Tina Kotek’s nominees to state boards and commissions. Sen. Brian Boquist, R-Dallas, requested an excused absence for that Friday session, saying he needed to attend a Catholic Mass for the feast of Saint Michael, Saint Gabriel and Saint Raphael.
He was marked absent, as was Hayden.
Ryan said in the future the Legislature might want to change the rules to protect members in these circumstances.
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