Top lawmakers and other Capitol officials will turn over closely guarded records to the Oregon’s Bureau of Labor and Industries, after fighting the matter repeatedly in court.
Following a ruling by a state Appeals Court commissioner, House Speaker Tina Kotek said in a statement Wednesday that she and other officials would comply with subpoenas from BOLI investigators and immediately produce a wide array of documents related to sexual harassment complaints at the Capitol.
“The Legislature will comply with the recent court order,” Kotek’s statement said in part. “But I remain concerned that Tuesday’s ruling will undermine the Legislature’s ongoing work to maintain that confidentiality and have a chilling effect on reporting in the future.”
The decision marks a major development in the ongoing squabble between lawmakers and Labor Commissioner Brad Avakian. In August, Avakian launched an investigation against the Legislature, accusing Kotek, D-Portland, Senate President Peter Courtney, D-Salem, and other top officials of turning a blind eye to harassment issues.
Capitol officials denied most of Avakian’s claims, but nevertheless promised to cooperate with the investigation. That changed when BOLI began lodging subpoenas.
Arguing that the investigation was over broad and could risk outing harassment victims, lawmakers refused to comply. When Avakian sued, they mounted a defense in court.
But the Legislature repeatedly came up short. In November, a Multnomah County judge ordered officials to obey the subpoenas. When the Legislature attempted to appeal that decision, an appeals court commissioner found on Tuesday that wasn’t allowed.
Still, the decision Kotek announced Wednesday afternoon wasn’t a foregone conclusion. Edwin Harnden, the lawyer representing the Legislature, said Wednesday morning that officials hadn’t decided whether to strategically ignore the court order.
Kotek’s statement reiterated arguments Capitol officials have been making for months: Releasing information about harassment victims to BOLI could create a chilling effect for future victims, and that an ongoing examination of the state’s harassment policies will help correct problems.
“I believe there were other ways to address the goal of the investigation without compromising the confidentiality of individuals who have reported inappropriate behavior,” Kotek’s statement said. “Unfortunately, the Labor Commissioner disagreed.”
She continued: “To those individuals who expected their information would be kept confidential, I am sorry that this process might violate your privacy. I support individuals who are willing to share their information publicly, and I believe everyone should be able to decide for themselves if their story becomes public. No one should make that decision for them, and no one should fear being publicly outed without their consent for reporting inappropriate behavior.”
Courtney also released a shorter statement Wednesday, suggesting the recent court ruling could imperil the safety of Capitol employees.
“I worked as hard as I could to protect those who had come forward about working conditions," Courtney said. "Sadly…BOLI and the courts have ordered the Legislature to hand over all confidential records of these individuals. The executive branch and the judicial branch have made it very difficult for the legislative branch to have a healthy and safe workplace."
BOLI has been adamant that identities of harassment victims will be kept confidential. The agency has obtained a protective order from one of its own administrative law judges stipulating that records from the investigation will be kept private, even after the investigation is closed. Under Oregon law, many investigatory files are considered public once an inquiry has concluded.
On Wednesday, attorney Harnden repeated doubts about BOLI’s ability to keep information secret.
“I don’t believe that they can promise that,” he told OPB. “They think they can, but they can’t.”