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Report says 'lawmaker consistently blurred the lines' but is silent about violations; investigators upheld three of five allegations.

FILE - Diego Hernandez in 2013.State Rep. Diego Hernandez will defend himself against outside investigators' findings, which are subject to review by a House committee, that he created a hostile work environment for three women in the Capitol.

The 33-page report was officially released Tuesday, Jan. 26, by the Legislative Equity Office, which commissioned the investigation by the Portland firm Jackson Lewis early last year. A news organization, not Pamplin Media Group, obtained an advance copy; some representatives have requested a separate investigation of the leak.

The House Committee on Conduct has scheduled several meetings on the Hernandez case starting Monday, Feb. 1.

Hernandez, a third-term Democrat from East Portland, is accused of violating a House rule that bars sexual harassment creating a hostile work environment. The original rule was broadened in 2019 to cover not only the Legislature and staff members, but also anyone doing business with them.

"Now that it's clear who can be considered in the workplace, I will not make that mistake again," Hernandez said in a statement after the report was released.

Although the report does not name the women and masks their identities, they were not legislators or staff members. Hernandez said one was a lobbyist and two others worked for local officials.

The investigators, Lisa Ryan and Kira Johal, concluded there was evidence to support three of five allegations. But they make no conclusion about whether Hernandez actually violated the rule.

"Unlike investigations regarding the conduct of those who are not members of the Legislative Assembly, investigators are not asked to determine whether (the rule) has been violated," the report says. "Rule 27 directs the investigator to use best practices in conducting the investigation and to make findings of fact relevant to the allegations."

Hernandez, in a brief interview with the Portland Tribune, said the allegations were reframed from the original accusations against him last spring. "We now know that I am not being accused of what made headlines for many months," he said.

He also said he never used his official position to foster or rekindle romantic relationships with the women involved, some predating his election in 2016.

But in his statement, he acknowledged that his judgment was often flawed:

"Some dating relationships do not end definitively, but rather slip away over time. There is often some confusion, mixed signals and strained emotions. To anyone I made uncomfortable in my personal life, I sincerely apologize. My actions were motivated from honest affection and the best of intentions."

The investigators came to a different conclusion.

"We find it more likely than not that Rep. Hernandez had intimate relationships with at least four individuals who did business at the Capitol," they said in their report. "We further find that those individuals felt that Rep. Hernandez consistently blurred the lines between their personal and professional relationships and that conduct had a negative impact on their ability to do business at the Capitol."

Committee hearings

The two Democrats and two Republicans on the Conduct Committee will consider what recommendations, if any, they will make to the full House. The Oregon Constitution empowers each chamber to punish members for "disorderly behavior," and can expel a member with a two-thirds majority vote, an action neither chamber has used in recent memory.

"I want to respect the committee process and look forward to the hearing to present my full rebuttal, including evidence that was ignored in the investigation," Hernandez said in his statement.

Hernandez has been represented by Salem lawyer Kevin Lafky, who last year filed a tort notice of a potential lawsuit against the state. Hernandez said he will await the outcome of committee proceedings first.

Hernandez, 33, is a Democrat who has represented District 47 in East Portland since 2017. He was re-elected to a third term Nov. 3 with 49.3% of the votes in a three-way race.

The day before the report was released, House Speaker Tina Kotek restated her call for Hernandez to resign. She originally did so last year, after the Portland Democrat stripped Hernandez of his interim committee assignments and Hernandez took a leave of absence.

"My call for his resignation has not changed," Kotek told reporters in a conference call, although she also said she had not read the report in advance of her comments, only a news account of the leaked report.

"I am frustrated that women felt uncomfortable about working in the Capitol, and that it was a hard place for them because of the situation of Rep. Hernandez. If the report validates that, that's very concerning to me."

Hernandez said Tuesday he would decline comment on Kotek's remarks.

Kotek did put Hernandez on three House committees this session — Energy and Environment, General Government, and Revenue — and the Joint Committee on Tax Expenditures, which consists of the House and Senate revenue committees.

No resignation

Because the Conduct Committee may recommend action that all 60 representatives will have to vote on, Kotek said she did not want to go beyond her original statement. She also has called for the resignation of Rep. Mike Nearman, a fourth-term Republican from a Mid-Willamette Valley district. He is under criminal investigation by the Oregon State Police for opening a door that allowed anti-lockdown protesters to breach the closed Capitol during a special session Dec. 21. No charges have been filed.

"We have not really seen that run all the way through its course and members might decide not to take action," Kotek said about Hernandez. "That does not change my opinion that as the steward of the (legislative) branch and as the speaker, I feel really strongly that members who have put others at risk or created an unsafe situation — whether that is Rep. Hernandez or Rep. Nearman — they should be held to a different standard.

"I think that at the end of the day, resigning is the thing to do because unless your voters un-elect you — and Rep. Hernandez was re-elected — you are in the spot of how you can hold somebody accountable when they are an elected member."

Under the Oregon Constitution, a legislator is subject to a recall election after the fifth day of a legislative session. This provision is an exception to the constitutional ban on recalls of elected officials until they have served six months of their terms. Legislators were recalled in 1985 and 1988.

Hernandez said in his statement:

"Throughout this flawed and politicized process, I've been working hard for my district. My recent re-election and my public service is about the families of my district and I am dedicated to making sure they get the state's full support and their fair share of the resources they need during this turbulent crisis and uneven recovery."

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NOTE: Reposted to clarify Hernandez's party affiliation and home base. Corrects date for start of House Committee on Conduct hearings.

Link to report by investigators to the Legislative Equity Office and the House Committee on Conduct:

https://olis.oregonlegislature.gov/liz/2021R1/Downloads/CommitteeMeetingDocument/229560

Full statement by Rep. Diego Hernandez, D-Portland, upon release of the report:

After an exhaustive nine-month investigation, and hundreds of thousands of taxpayer dollars, we now know that I am not being accused of what made headlines for many months.

I had a friendship with the three women reported as "subjects" prior to becoming a legislator. None of them have ever worked for me in any way nor were they legislative branch staff while we were dating. One was a lobbyist and the other two worked for locally elected politicians, in Rule 27 that came into effect in late 2019, it broadened who is considered in the workplace, and now that it's clear who can be considered in the workplace I will not make that mistake again.

Dating when you are young is hard. Some dating relationships do not end definitively, but rather slip away over time. There is often some confusion, mixed signals, and strained emotions. To anyone I made uncomfortable in my personal life, I sincerely apologize. My actions were motivated from honest affection and the best of intentions.

I've dedicated my life to social justice and public service. I know that I have made judgment errors, I am human. I come from poverty and a lot of trauma and it has taken me a long time to understand, grow and learn from it. I know that I still have more growth and learning to do.

Too often we have seen the conduct rules politicized, cases tried in the press, and punishment meted by leadership before investigations are complete. Rule 27 is meant to create a safe and welcoming environment at the Capitol, but in reality it's a fear based system that traumatizes all sides in a unreasonably lengthy process that has no basis or intent in restorative, reconciliatory, or transformative justice.

Throughout this flawed and politicized process, I've been working hard for my district. My recent re-election and my public service is about the families of my district and I am dedicated to making sure they get the State's full support and their fair share of the resources they need during this turbulent crisis and uneven recovery.

I want to respect the committee process and look forward to the hearing to present my full rebuttal, including evidence that was ignored in the investigation.

— Diego Hernandez


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