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Capital Beat: Transparency in harassment cases differs between House, Senate

  • The Attorney General’s office is investigating accusations of sexual harassment against State Sen. Andy Sanborn (left). AP file



Monitor staff
Sunday, September 02, 2018

Years before the press swarmed, Susan Olsen was on her own path to investigating potential harassment by Sen. Andy Sanborn.

Olsen filed right-to-know requests in October 2016 and May 2017 to obtain documents related to any investigation by the state Senate. She broadened the search to emails, letters, memos, proposals, agreements, statements and more – anything to do with “sexual, physical or other improprieties” in the Senate over a span of seven years.

But she didn’t get far. Both times, Rick Lehmann, the Senate counsel, replied with a letter that rebuffed the requests, citing, among other reasons, attorney-client privilege and the privacy of State House employees.

“To the extent that your request encompasses records pertaining to internal personnel practices, confidential, commercial, or financial information, or other files for which disclosure would constitute an invasion of privacy, such information is exempt from disclosure pursuant to RSA 91 A:5, IV,” read one line of the response letter in May.

Olsen wasn’t the only one. In late 2017, as bombshell reporting on Harvey Weinstein triggered a crescendo of reports on harassment in the workplace, New Hampshire reporters began investigating a series of rumors spreading about Sanborn’s conduct as state Senator. Outlets put in their own requests for harassment complaints or investigations covering the time period around the rumors – 2013 – as well as beyond. Each received the same response: any documents that existed couldn’t be released.

In the months since then, an Attorney General investigation has brought much more to light, with interview transcripts laying out a swathe of alleged behavior by Sanborn towards aides and colleagues. Those allegations have muscled their way into the political sphere, highlighted by Sanborn’s opponent for the Republican nomination in the state’s 1st Congressional District.

If the Attorney General’s investigation has helped expose previously unaired accusations, it’s also revealed a greater truth: The Senate’s process for dealing with harassment complaints is far from transparent.

Complaints, such that exist, have historically been handled in part by the Senate counsel, making their contents subject to attorney-client privilege. Memos and notes are not taken, leaving little paper trail. For those complainants not seeking the formal approach through the Legislative Ethics Committee, the substance of their complaint is nearly entirely kept from the public eye.

The result: Andy Sanborn – a state Senator against whom several allegations of harassment or uncomfortable behavior have been lodged, who once had a staff member removed pending a mandatory sexual harassment training process – did not have to answer to the public on those charges for five years.

Senate leadership says it’s the best approach to bridge a near-impossible dichotomy. The senators in power are ultimately held accountable by voters, but the staffers that might accuse them are beholden to their careers. Information that might be helpful for the voter might not be the same for the state employees, and vice versa. Balancing those interests is a delicate exercise, leadership officials say.

“The Senate president feels very strongly that we need to aggressively work to create an environment in which people can feel comfortable coming forward to relate their concerns about their workplace,” Lehmann said in an interview. “Staff members can file a formal complaint or they can make an informal inquiry in which they ask for something to be done more or less quietly in order to make their work environment more comfortable for them.”

Staff worries

Central to the Senate’s low-key approach: protecting the staff. And the past few months have validated that concern, they say.

As the slow-motion release of 17 different transcripts of Department of Justice interviews during the investigation into Sanborn has unfolded, employees from the Senate Chief of Staff to legislative aides past and present have seen their names appear in newspapers and online reports. They’ve seen comments they gave to investigators back in January explode into the public eye, as journalists and campaign operatives pour through hundreds of pages of transcripts. They’ve seen accusations, rumors, personal anecdotes – all of it vaulting from the State House halls to public discourse.

The experience is setting off a chill among the staff members involved, Senate leadership officials say.

“I think this whole process with the AG’s office – there’s no question in my mind it’s been a challenge for the staff,” said Kristy Merrill, the current Senate chief of staff. “There’s a lot of people here that just want to come in every day. They got called in (to the Attorney General’s office), they cooperated, and they were not expecting to see their names and their thoughts play on the newspapers, and dread it frankly.”

And it’s one that could give them pause before they come forward in the future, Merrill added. “That’s my fear,” she said.

That, says Lehmann, is why the Senate is opting to keep things discreet.

“We work to make this a comfortable place for the staff to be,” he said. “And ... a staff member who shows up and goes to work every day, isn’t here seeking the limelight, doesn’t want to be a public figure, but just wants to have a job that they like and is at a place that’s comfortable to work, shouldn’t carry the burden of making disclosures for the benefit of the public. That’s not the role of the people who work here as aides and secretaries.”

Differing approaches

The House process, meanwhile, offers a clear contrast. Since 2015, House Chief of Staff Terry Pfaff has meticulously recorded memos relating to harassment complaints against members of the House. A staff person, lobbyist or fellow official may approach Pfaff with a complaint; Pfaff will write summaries of the initial meeting, subsequent interviews with witnesses, and the final conversation with the alleged harasser. Those memos are then made available to media outlets under the right-to-know law – with full redactions of names and identifying details of those involved.

It’s how New Hampshire Public Radio and the Monitor were able to reveal that Rep. Dan Eaton, a Stoddard Democrat, was the subject of a complaint this year by a female staff person alleging a year’s worth of harassment against her. (Eaton has not returned calls or emails seeking comment.) And it’s how, more generally, outlets have given the public a glimpse of the breadth of harassment complaints in the House, even if their subjects remain hidden.

Compare that to the Senate. Since the 2013 comments made by Andy Sanborn, the body has not seen any complaints of harassment brought to the attention of Senate counsel, according to Lehmann. But if the process at work during the Sanborn investigation is any guide, much of what is done will likely be privileged, shielded from public view.

To Jim Rivers, the House director of communications, the House’s approach – publishing memos but withholding names – strikes the right balance between privacy and accountability. “Terry took the decision out of their hands and figured, ‘I’m just going to redact everybody,’ ” he said.

Still, neither House nor Senate staffers were interested in dwelling on differences from the other chamber.

“The House and the Senate are two different animals on so many fronts. They probably make their coffee differently than we do,” Rivers shrugged.

An independent model

As the Sanborn investigation turns the spotlight to the practice, one senator is proposing a new approach. Sen. Dan Feltes, D-Concord, will introduce a bill next session to establish an independent “HR” style body to handle and investigate harassment complaints, he announced recently.

Removing the complaint process from the Senate President’s office will allow investigations to proceed transparently and productively, Feltes said.

“I think both the Senate process and the House process is structurally deficient, regardless of the political party in charge, and who they hire as their legal counsel,” he said. “It needs to be a separate process, independent of the politicians in control of chambers, where it’s dealt with through human resources and/or independent contracted authority.”

Leadership staff declined to weigh in. That will be up to the Legislature next year.

But for her part, Merrill said the present process does its job.

“I think we’ve made some good progress over the years in dealing with harassment issues,” she said. “I think there’s more work to be done. … In terms of what the ideal is, I think we’re getting there. And I think we’re going to continue to work and evolve on that.”

(Ethan DeWitt can be reached at edewitt@cmonitor.com or on Twitter at @edewittNH.)