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The lawmaker's lawyer says an investigation of sexual harassment deprives the Portland Democrat of his rights.

PMG FILE PHOTO - Rep. Diego Hernandez claims that he is being retaliated against for not backing a PERS plan endorsed by legislative leadership. A lawyer for state Rep. Diego Hernandez has served notice of a tort claim against the state and how the Oregon House has handled its investigation of allegations against the Portland Democrat of sexual harassment and creating a hostile workplace.

The claim was filed by Salem lawyer Kevin Lafky with the Department of Administrative Services, the management and budget agency for state government. A tort claim alleges a civil wrong, such as physical injury or emotional distress, and usually seeks monetary damages.

Lafky said Monday, May 11, that the lawsuit may name the state itself and the Legislature, as well as House Speaker Tina Kotek and Majority Leader Barbara Smith Warner, both Portland Democrats.

Kotek, through a spokesman, declined comment.

The claim is aimed at the investigative process set in motion publicly May 4 by the House Committee on Conduct, which received the complaint against Hernandez. Its members, equally divided between the political parties, are nominated by Kotek and the minority-party leader and approved by the full House.

After the committee approved two interim steps — one barring contact between Hernandez and the women involved in the complaint, and the other requiring Hernandez to give 24-hour notice before he enters the now-closed Capitol in Salem — Kotek called on Hernandez in a news release to resign his District 47 seat.

Lafky said in a statement:

"My client's civil and constitutional rights are being violated and we are ensuring that a political process is also being held accountable by a legal process that guarantees those rights, such as presumption of innocence and the right to know exactly what you are being accused of and by whom. Rep. Hernandez isn't just fighting for himself; he's fighting for due process and the rule of law."

Hernandez has alleged there is an organized campaign to pressure him to resign, based partly on his opposition to 2019 legislation favored by legislative leaders to divert some future public-pension benefits to shore up current payments. Senate Bill 1049 passed 31-29; Hernandez was one of seven Democrats to join all 22 Republicans in opposition.

Lafky said:

"A white, powerful speaker is attempting to destroy a man of color's character because he refused to help her reduce working-class people's retirements. We have centuries of history in which men of color have been disproportionately affected by unfair and/or falsified allegations of gender-based misconduct."

Though it was mentioned at the May 4 hearing that seven women had stepped forward, five of them apparently chose later in the week not to add their names to the formal complaint, so they will not be interviewed. A third-party investigator, Sarah Ryan of the Portland firm Jackson Lewis, told the committee she had interviewed one of the women who filed the original complaint, but not the other.

Hernandez said in a statement: "In this politicized process, Tina Kotek was able to appoint the jury, declare me guilty and sentence me to political and professional exile without any due process. Her process has not been about restorative justice or reconciliation, but instead persecution."

No names were mentioned during the May 4 hearing.

But Andrea Valderrama, chair of the David Douglas School Board, filed for a restraining order against Hernandez on March 3 based on a 2019 incident alleging violent behavior by Hernandez while he was drunk. They apparently lived together at the time. She withdrew her request on March 25 — Valderrama said she no longer feared for her safety — and a Multnomah County judge dismissed it the next day without issuing an order.

The claim filed by Lafky mentions only that "a personal acquaintance" filed and then withdrew the request for the restraining order.

The identity of the other woman who filed the complaint has not surfaced.

Lafky said Hernandez did take a leave of absence earlier this year from his legislative duties, pressed by Kotek and Smith Warner, but his leave has ended.

"The leadership of the Oregon Legislature has refused to provide the substance of the complaints to Rep. Hernandez, forcing him to try to defend himself without knowing what the nature of any complaints might be.

"The most basic tenet of due process is that a person knows the nature of the allegations, with adequate notice and an opportunity to be heard. Instead, Rep. Hernandez has been denied these basic rights, prevented from knowing the allegations, and confronted by peers who have made a decision before he can even defend himself.

"Particularly, the system devised by the Legislature under House Concurrent Resolution 20 (in 2019) is deeply flawed and violates the due process rights of any person accused under that scheme."

Hernandez was elected in 2016 to the District 47 seat that covers East Portland. He is unopposed in the May 19 primary for renomination to a third term. He currently has no interim committee assignments, which are made by Kotek.

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NOTE: Corrects detail in selection of House Conduct Committee members; adds no-comment from Speaker Kotek.


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