This stinks.
From Politico:
Under the new rules, if the complaint is not tossed by the special master or a Senate president-appointed select committee, it goes to a separate select committee appointed by the Senate president. | AP Photo
Senate’s quiet post-Latvala rules overhaul draws criticism from advocates
TALLAHASSEE — One year after sexual misconduct investigations took down former state Sen. Jack Latvala, the Florida Senate has rewritten its process for handling the sort of complaints that hastened the powerful senator’s resignation, including axing the requirement for an outside legal review.
The new chamber rules apply to a rules complaint filed for any reason — not just sexual misconduct. But the process for dealing with these complaints has been defined over the past year by the Latvala resignation, which was aided in large part by a rules complaint filed by legislative staffer Rachel Perrin Rogers, who said Latvala had long sexually harassed her.
New state Senate President Bill Galvano, the Bradenton Republican who crafted the rules, said he wanted to clean up the process for handling rules. But sexual harassment experts fear that some of the changes could present a challenge to victims who want to use the Senate rules complaint process.
The overhaul of how the Senate handles rules complaints includes, among other things: an option to move forward with an investigation without an outside probe; procedures that could result in complaints going through two committees appointed by the Senate president; and a new gag order discouraging senators from discussing publicly any filed rules complaint.
“I thought the whole process should be cleaned up so it was clear what steps we needed to take to avoid ambiguity,” Galvano said.
The new rules were adopted last week by the 40-person Senate without public discussion. Any incoming Senate president gets the chance to re-write chamber rules, including those related to complaints, ahead of their two-year term as presiding officer. Galvano stressed that his changes include a new 30 day timeline to take action once a complaint is filed, which prevents a complaint being “buried with inaction,” and that a copy must now also be filed with the Senate general counsel. Galvano said that new requirement is a “check on the president and rules chair” because the general counsel would have an obligation to report any criminal misconduct to outside law enforcement.
If some of the changes had been in place last year, they could have impacted Perrin Rogers’ rules complaint, which played a big role in forcing Latvala’s resignation.
Under Senate rules in effect at the time Perrin Rogers filed her rules complaint, any complaints not thrown out for lack of evidence had to be turned over a special master for an outside investigation. In Perrin Rogers’ case, after a lengthy investigation separate from the Senate process, special master Ronald Swanson eventually confirmed Latvala had a lengthy track record of sexual harassment, and recommended that law enforcement investigate allegations that Latvala, who was the Senate budget chief, traded sexual favors for legislative help. Charges were never brought related to the quid pro quo allegations.
Latvala announced he was resigning in Dec. 2017 after Swanson’s report, the second against the embattled senator, was released. Both investigations started after POLITICO reported that six women, including Perrin Rogers, anonymously accused Latvala of harassment or groping.
Under the Senate’s new rules, the requirement for that outside special master investigation would no longer exist. The new rules still allow for the Senate Rules Committee chair to turn over a complaint to an outside special master, like Perrin Rogers’ was, but a complaint can now also be sent to a select committee appointed by Galvano. He says the additional option will help streamline the process in cases that are not complex and where a full outside investigation is not required to determine if there is probable cause.
“Sometimes a select committee can do the job depending on the circumstances, and I wanted to have that flexibility to find probable cause,” he said.
But Tina Tchen, a Chicago-based attorney who was Michelle Obama’s chief of staff and a co-founder of a new legal defense group for sex harassment victims called Time's Up, told POLITICO that complaints should trigger an automatic outside probe.
“Especially when the allegation is against a member, it’s important to have an independent outside investigation outside of their peers,” Tchen said. “It’s normal to have punishment by the members. But you need to have that punishment informed by an outside investigation ... You want people who are trained in trauma-informed investigations.”
Tchen pointed to Maryland as a model for dealing with sexual harassment in state government. The state recently changed its policies to require that an independent investigator handle complaints.
She also said the rules set too high of a bar for victims to report an incident of sexual harassment.
“Sexual harassment complaints are unique. In these kinds of complaints, there’s not always a lot of documentation,” said Tchen. “The collection of the evidence is what happens in an investigation. This is asking them to get all the evidence before the complaint.”
Under the new rules, if the complaint is not tossed by the special master or a Senate president-appointed select committee, it goes to a separate select committee appointed by the Senate president. The second committee, which can have different members than the first committee, would consider any report put together by the special master for the first committee. It could either reject the report, approve its recommendations, or come up with its own set of recommendations.
“The second committee is a serious concern,” Rory Gerberg, a Harvard University fellow focused on sexual harassment and assault training, said after POLITICO provided her a copy of the new rules to review.
She said the biggest problem is that a second committee is only deemed necessary if the initial investigation comes out in favor of a person filing the complaint. It means a successful complaint can then go to a second committee, which can re-write the initial findings and come up with their own.
“It’s bad enough when findings of misconduct are not sanctioned by institutions. This is worse,” Gerberg said. “It allows the Senate to avoid sanctioning that conduct by actually re-writing the version of history, potentially pulling out from victims the one form of justice they would otherwise have — the mere recognition that it happened.”
“That’s devastating,” she added.
Galvano said the two layers — the first special master or select committee review, then the second select committee — help add clarity. The first, either a special master or select committee, determines if there is probable cause, while the second is tasked with further investigation and finalizing a final recommendation, which could be punishment or tossing the complaint.
When asked why a complaint would potentially go through two separate committees, Galvano replied: “Because they are two separate functions.”
Though each committee would have a different scope, Rick Johnson, a longtime employee rights attorney, agreed the new rules were problematic, calling the potential two-committee approach a “needless obstacle in the path of justice for the victim.”
“I’m concerned about the offender getting to go before a second select committee if the first one does not dismiss the complaint,” said Johnson, who represented Kathy Jennings in her 1990s sexual harassment case against then-state Rep. Fred Lippman.
“I know of no other area of law that provides for a simple do-over if the accused simply does not like the first outcome,” said Johnson, who was asked for comment after POLITICO showed him a copy of the new Senate rules.
He also expressed concern over new language added to the rule that prohibits a senator “from speaking publicly about the merits or substance” of a rules complaint. As the Latvala saga unfolded, there were several senators who spoke to the members of the media about their perception of the issue, including high-profile press conferences calling on Latvala to resign.
Galvano said the rule was driven by the fact he does not think senators should speak publicly to a complaint against a member that they may later have to vote to reprimand or expel from the Senate.
“It’s public perception, but also you don’t want to taint the process with early judgment,” Galvano said. “The same member could ultimately end up making the final judgments.”
Gerberg, the Harvard fellow, disagreed, calling the new language a “gag order dressed in the language of due process.”
“To ban any Senator from speaking due to the theoretical potential they may be asked to sit in judgment is draconian,” she said.
Johnson, the longtime employee rights attorney, compared it to if Congress put in place a rule preventing members from discussing ongoing investigations.
“I would hate to see a rule prohibiting Congress from public discussion of Trump’s misdeeds on the grounds that they may someday have to vote on impeachment,” he said.
Democratic state Sen. Lauren Book (D-Plantation) condemned Latvala’s “scorched earth” tactics last December as he publicly fought Perrin Rogers’ complaint against him through the press. She defended the updated rules to POLITICO as more comprehensive and said they wouldn’t keep her from speaking out to the press in the future.
But, she acknowledged that if she did speak to the press about a future complaint, she could be barred from the Senate’s new select-committee process, or potentially even from a chamber vote to punish the senator.
Book, a victim of childhood sex abuse, sponsored an anti-sexual harassment bill that died in the Senate at the end of last session. She said there was perhaps a need to carve out sexual harassment complaints and give them their own section of the chamber’s rule manual. Book is planning on filing another measure to overhaul the state government’s policies on sexual harassment next legislative session.
“That’s why we are continuing to move forward with our bill and continuing to look at these issues," said Book . “This is a step in the right direction.”
Other additions to the Senate’s rules for handling rule complaints include:
— Adding “admonishment” to the potential penalties a member could face. It would be the least severe punishment that now could be doled out under the Senate rules, which also include a censure, formal reprimand, or being expelled from the chamber.
— The new rules also offer an informal punishment for senators who commit rules violations that might be “inadvertent, technical, or otherwise de minimisviolations.” Galavano said the option should be available for very minor rule violations.
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