Why Legislature doesn't release information on harassment, settlements: They don't have to

Tina Smith reads a proclamation.
The South steps of the Minnesota State Capitol during it's grand opening celebration in St. Paul, Minn. on the morning of Friday, Aug. 11, 2017.
Evan Frost | MPR News File

The Minnesota Legislature prides itself on conducting public business and protecting taxpayer money. But when it comes to allowing for the scrutiny of employee complaints, legal settlements and lawmaker misconduct, the Legislature lives in a black box.

Employee records, legislative budgets and email correspondence are all exempt from the state's open records laws. That means the public has to rely on whistleblowers to learn about any alleged misdeeds involving senators or representatives.

Take these two examples:

• Democrats in the Minnesota House say they know of a sexual harassment complaint filed between 2013 and 2015 but refuse to name the person it was filed against.

• House Republican leaders quietly settled a $72,500 employee discrimination lawsuit without ever informing their Democratic counterparts.

Legislative leaders in the House and Senate have declined to disclose sexual harassment complaints involving senators or representatives. They also say there is no record of settlements involving taxpayer money — a statement difficult to verify considering their budget documents are not accessible to the public.

These transparency issues arises at a time when officials in state governments across the country are facing multiple harassment complaints. In Minnesota, Rep. Tony Cornish and state Sen. Dan Schoen resigned last month after misconduct complaints were lodged against them.

Republican leaders say they're taking steps to create a better workplace atmosphere. They are requiring sexual harassment training for every lawmaker and want to redesign a complaint system to ensure lawmakers, staff and the public feel protected if they file a complaint against an elected official.

"We will have a zero-tolerance policy for that kind of behavior. And we'll take whatever action is necessary to make sure that people do feel safe when they're here," said Minnesota House Speaker Kurt Daudt.

But there's no certainty that the public will ever learn of such complaints, how the complaint was resolved and even if a settlement was reached. In some instances, legislative leaders aren't even aware when complaints are filed against a member of the other party. In one instance, lawmakers didn't know of a settlement until they were informed of it by MPR News.

The settlement surprise

In 2011, David Easterday filed a lawsuit against the Minnesota House of Representatives. Easterday worked as a legislative assistant in the House for nine years but was fired after his supervisors complained about his work, according to court filings. Easterday said he suffered from severe depression which made it difficult to complete his tasks. His lawsuit claimed the House of Representatives went back on an agreement to give him certain accommodations.

After a round of legal filings, Easterday's complaint was settled in November, 2012. Easterday didn't return calls to discuss the settlement but his attorney, Judith Schermer, said the House agreed to pay Easterday $72,500 for back wages, damages and attorney bills. She shared details of the settlement — even sending checks confirming the payments were cut by the Minnesota House of Representatives.

"It's important that light is shown on these settlements and the public has a right to know," she said.

Easterday's settlement was never disclosed in a public hearing. Democrats who were preparing to take control of the House didn't even know about it until informed by MPR News.

"I don't recall a name or a settlement," said Rep. Erin Murphy, DFL-St. Paul.

Kurt Zellers, who served as speaker of the House at the time of the settlement, didn't return messages to discuss it.

The settlement is an example of the secrecy that cloaks some of the Legislature's activities. While most governmental units across Minnesota are required to disclose settlements and disciplinary action related to misconduct, the Legislature is exempt from it.

Murphy, who served as House Majority Leader between 2013 and 2015, and Rep. Paul Thissen, who served as speaker of the House during the same time period, confirmed the existence of a sexual harassment complaint against a Democrat in the House during that time. Both declined to discuss specifics except to say the lawmaker received additional sexual harassment training and no longer serves in the Legislature. They both cited a House policy related to privacy pertaining to personnel matters.

"I don't feel as a member of the House that I can do that because of the position that the House has taken," Thissen said.

Thissen said he's pushing for a law that would apply the open records act to the Legislature. He also said he'll push for greater disclosure of sexual harassment complaints in the Legislature provided the victims are willing for the information to be shared with the public.

In 2013, the Senate also reached a $30,000 wrongful termination settlement with former staffer Michael Brodkorb. The Senate paid more than $300,000 in legal bills regarding the claim.

DFL Gov. Mark Dayton said he favors releasing more information related to sexual harassment settlements in state agencies. He doesn't have the power to tell lawmakers what to do, but thinks lawmakers should be more transparent.

"The Legislature is only bound by itself. The Legislature is going to have to come up with its own procedures, assurances, protections and consequences. And they should do so definitely as we should in the executive branch," Dayton said.

Minnesota's Legislature has operated in a culture of secrecy for decades, according to Don Gemberling, an expert on the state's open record laws. He said it's unlikely senators and representatives will want to expose themselves to requests involving budget matters, policy positions and other items discussed in private.

"If I were ever to bet a small amount of money on them ever doing that, i.e. making themselves subject to the Data Practices Act, I'd bet against it," he said.

Gemberling, who also serves as a spokesperson for the open records group Minnesota Coalition on Government Information, said he thinks the only way lawmakers become more transparent on harassment claims and settlements is if they force it upon themselves.

"It's more likely with some public pressure that the Legislature might change some of its rules to provide for more transparency but subjecting them to the Data Practices Act is a real long leap for them to take," he said.

Tom Scheck is a reporter for APM Reports. Contact him here.

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