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Conduct committee comes to ultimate punishment after four days of hearings.

PMG FILE PHOTO - An Oregon House panel recommened Friday, Feb. 5, that state Rep. Diego Hernadez be expelled from the Legislature for violating harassment rules.A legislative committee voted Friday, Feb. 5, to recommend the expulsion of state Rep. Diego Hernandez from the Oregon House on multiple violations of a rule barring sexual harassment.

A two-thirds majority (40) of the 60-member House would be required to expel Hernandez, a Democrat who was re-elected to a third term Nov. 3 from District 47 in East Portland.

It would be the first time in Oregon's 162 years of statehood that either chamber of the Legislature has invoked the constitutional provision empowering it to expel members on grounds of "disorderly behavior."

After the 4-0 vote by the House Committee on Conduct, 26 of the 37 Democratic representatives — excluding the two Democrats on the committee — called on Hernandez to resign to spare the House from an expulsion vote.

"A true representative listens to their community, understands their needs and respects those they represent," the statement released by Rep. Anna Williams, D-Hood River, said. "They do not abuse their power, they do not use this position to harass and intimidate. The time has come for Representative Hernandez to leave the Legislature."

Hernandez had not issued a response as of 7 p.m. Friday.

The House would have to conduct an expulsion vote during an in-person session. Both chambers have held only pro forma sessions since opening day Jan. 11 to allow bill introductions. The Capitol has been closed since March 18, 2020, at the start of the coronavirus pandemic, so legislative committees have been meeting virtually and taking testimony in writing and during video conferences.

The committee, evenly split between Democrats and Republicans, voted after four evening hearings totaling 10 hours earlier in the week. The committee could have proposed censure or other lesser sanctions against Hernandez.

Although the Oregon House has never voted to expel a member, its counterparts in Arizona and Colorado did so in 2018, both in connection with sexual harassment allegations. According to a National Conference of State Legislatures survey conducted years ago, expulsion by any legislature is rare and Oregon has never invoked it.

Legislators were recalled in 1985 and 1988 — one after a misdemeanor conviction for sexual abuse — and a senator resigned in 1993 after she had been convicted of multiple felonies. Voters changed the Oregon Constitution in 1994 to provide for automatic expulsion upon a felony conviction.

'No road map'

Disorderly behavior is not defined, but Rep. Julie Fahey, D-Eugene, mentioned Class C felonies that would automatically expel a legislator. Among those low-level felonies are theft and criminal mischief involving at least $1,000 in property value, unauthorized use of a motor vehicle, and failure of someone to appear in court on a felony charge.

"There is not truly a road map for us here in this situation," Fahey, a co-chairwoman of the committee, said. "But in my opinion, the conduct we heard over these past four days represents a significantly more serious abuse of power and position than anything on that list."

Hernandez, 33, was found by the committee to have violated a legislative branch rule a total of 18 times in the cases of three women who alleged sexual harassment that created a hostile work environment. None was a legislator or legislative staffer — Hernandez said they were a lobbyist and aides to two local elected officials — but the rule was broadened in 2019 to cover anyone who does business with the Legislature.

Hernandez did not speak to the committee. His lawyer, Kevin Lafky of Salem, read a statement by him apologizing for making anyone uncomfortable. But Hernandez also denied touching anyone inappropriately and being a risk to anyone in the Capitol. Lafky said he and his client did not get fair consideration of evidence they presented to rebut the allegations, and they said some differed from what outside investigations included in their final report to the committee.

Hernandez has said the relationships were consensual, some predating his legislative tenure. But all three women — some had their testimony read aloud by someone else — called on the committee to recommend expulsion.

Allegations by two other women — Teressa Raiford of the nonprofit Don't Shoot Portland, and an unnamed former Hernandez chief of staff, both of whom testified in person on Feb. 4 — were dismissed by the committee.

Committee debate

Rep. Raquel Moore-Green, R-Salem, had dissented on a preliminary motion for recommending expulsion. She acknowledged the accusations against Hernandez are serious and called them "an offense against the House."

"I cannot imagine a single member who has not been offended by this," Moore-Green, the only committee member who has been a legislative staffer, said. "But if we expel, there is no opportunity for reconciliation. Reconciliation brings peace — and we are all so in need of peace in that building, in our communities, our country and our world.

"I just cannot see how expulsion, as useful a tool as it may be, would help further our desire to work together."

But she joined the others on the final vote to recommend expulsion. She said it was important for the committee to show unity in its recommendation.

Moore-Green worked for then-Rep. Kevin Cameron of Salem from 2011 — when Cameron was Republican leader in an evenly split House — until Cameron was appointed a Marion County commissioner in 2014.

Rep. Tawna Sanchez, D-Portland, said someone told her of worse offenses occurring when he was an intern in the Legislature in the mid-1970s, when no rule against sexual harassment existed. She quoted a committee witness who, while supporting Hernandez's expulsion, also lamented that the ultimate punishment would be first used against a lawmaker of color.

"That does not make him any less responsible. But it will be the first time we do something like this," Sanchez, the only Native American in the current Legislature, said. "And it will be a man of color, which is not historically the norm — that we would hold a man of color accountable for something that we would not hold a white man accountable for."

An 'internal matter'

House Speaker Tina Kotek, D-Portland, had called on Hernandez to resign back in May, when she stripped Hernandez of his interim committee assignments and required him to give 24-hour notice before entering the Capitol. Kotek did give him new assignments at the start of the 2021 session.

Gov. Kate Brown and Senate President Peter Courtney, both Democrats, were the latest officials on Friday to call for Hernandez's resignation. State Treasurer Tobias Read, also a Democrat, did so earlier in the week.

An open letter from 130 individuals and 17 organizations — including the Oregon Education Association, which had called on him Jan. 29 to resign, and Local 503 of Service Employees International Union, which represents the largest group of state government workers — called on the committee to take "bold and swift action" against Hernandez, although expulsion was not specified.

Rep. Ron Noble, a Republican who presided at Friday's session, said it was inappropriate for outside groups and individuals to conduct what amounted to a lobbying effort to influence the House committee proceedings.

"Trial by public opinion is wrong. It's wrong here. It's wrong in a criminal situation. It's wrong all the time," Noble, a former McMinnville police chief, said as he concluded the session.

"I would hope that as we move forward, citizens, groups, colleagues — and yes, even those in other branches of government — would hold back and allow the internal function to happen, even though it has to go through an external process. Because of this, we have injured parties that have been reinjured, and we have a respondent (Hernandez) who has had to face public scrutiny prior to any hearing on this subject at all."

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NOTE: Adds quotes from committee members, historical background.

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