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Investigator's report precedes House hearing into the conduct of the Willamette Valley Republican.

FILE - State Rep. Mike Nearman State Rep. Mike Nearman "more likely than not" helped anti-lockdown protesters breach the closed Capitol during a Dec. 21 special session of the Oregon Legislature, according to an independent investigation presented to the House Committee on Conduct.

The committee, which consists of two Democrats and two Republicans, will consider a pair of complaints filed against Nearman, 57, a four-term Republican from a Mid-Willamette Valley district. A hearing is scheduled Tuesday, June 9.

The report by Melissa Healy, a partner with the Portland law firm Stoel Rives, draws no conclusion about whether Nearman violated a House rule against creating a hostile work environment. The rule requires the committee to decide that issue when a lawmaker is involved.

One complaint was filed by Dave Hartsfield, Capitol facility services manager, on behalf of staff. He said Nearman's actions put Capitol staff and police in danger.

Hartsfield said this in his complaint:

"As the facilities manager, I feel responsible for safety and security of everyone in this building and take that responsibility seriously, and I don't think I could live with myself if I were not capable of standing up against these actions which created nothing less than a hostile work environment."

The other complaint was filed by seven representatives, all Democrats: Speaker Tina Kotek of Portland, Majority Leader Barbara Smith Warner of Portland, and Reps. Teresa Alonso Leon of Woodburn, David Gomberg of Otis, Khanh Pham of Portland, Rachel Prusak of West Linn and Andrea Salinas of Lake Oswego. Alonso Leon, Pham and Salinas are among the Legislature's 12 members of color.

Healy's report is posted on the House Committee on Conduct webpage.

'More likely than not'

The executive summary concludes:

"As detailed below, the evidence supports a conclusion that Rep. Nearman more likely than not intentionally assisted demonstrators in breaching security and entering the Capitol, and that his conduct more likely than not set into motion a chain of events that impeded the ability of Mr. Hartsfield and others to function in the workplace, and denied them the benefits of the workplace."

The Capitol has been closed to the public since the onset of the coronavirus pandemic on March 18, 2020. Legislators met three times in special session during 2020 — the Dec. 21 session lasted one day — and they have met in their chambers when the House and Senate act on legislation.

Committee meetings, however, are virtual. The 2021 session is scheduled to end by June 27; it is unlikely that the Capitol will reopen to the public before then, given that Marion County is still below the 65% threshold for people age 16 and up to be vaccinated against COVID-19. (Marion County was at 56.9% on Wednesday, June 2.)

Nearman has made no statement about his actions, other than a press release in response to a Jan. 11 disclosure by Kotek that Oregon State Police confirmed Nearman as the person shown on video surveillance footage opening a door and allowing protesters to enter a vestibule on the northwest side of the Capitol. Nearman then re-entered the Capitol, using a key card he no longer has, through the west State Street doors.

Kotek did not display any of the footage when she spoke to reporters Jan. 11, although Nearman said (falsely) that she had.

Police eventually ejected anti-lockdown protesters, many of them displaying support for former President Donald Trump, from the northwest vestibule they entered when Nearman exited. Six people were arrested.

The report says Nearman has retained a lawyer who has advised him to remain silent while the State Police investigation proceeded. Results were submitted to the Marion County district attorney, and Nearman was indicted on one count of first-degree official misconduct and one count of second-degree criminal mischief. Both are misdemeanors; maximum punishments are one year in jail and a $6,250 fine.

Nearman's next court proceeding is later this month.

From Healy's report:

"I am not aware of any public or private statement made by Rep. Nearman denouncing or denying his actions.

"A party's refusal to participate in the investigatory process does not create an insurmountable barrier to my fact-finding role. That is particularly true here, given the indisputable video footage and because Rep. Nearman's intent is irrelevant to my factual findings and conclusions and, ultimately, to the committee's determination of whether his conduct on December 21, 2020 violates Rule 27 (hostile work environment)."

Actions to date

On Jan. 15, the House Committee on Conduct specified that Nearman give 24-hour notice before he enters the Capitol, surrender his access card, not let unauthorized persons enter the Capitol, and confine himself to areas where legislative business is normally conducted.

Kotek stripped Nearman of his committee assignments and fined him $2,000 for damage caused to the Capitol during the Dec. 21 breach. It is unclear whether he has paid. He has continued to show up for sessions in the House chamber, although he told a Portland radio talk-show host that he was infected with COVID-19 and was absent for awhile.

The committee has been busy this year.

It concluded after four days of hearings in February that then-Rep. Diego Hernandez, D-Portland, committed 18 violations of the rule against a hostile work environment and found credible the accusations by three women of sexual harassment. The committee recommended that the House expel him, which would have been a first in state history, but Hernandez resigned his seat before the vote was scheduled.

It concluded earlier this week that Rep. Brad Witt, D-Clatskanie, violated the rule in a series of text messages with Rep. Vikki Breese-Iverson, R-Prineville. The committee has not yet decided what action it will take.

Healy's report says:

"It is reasonable to conclude, based on the security footage, that many of the demonstrators at the Capitol on Dec. 21 appeared to espouse far-right political beliefs.

"It is also reasonable to conclude that Rep. Nearman was likely aware of those sentiments, given the demonstrators' visible presence at the Capitol that day, and the fact that the individual who was waiting immediately outside the exterior door that Rep. Nearman opened was wearing a shirt and carrying a flag with the 'Punisher' skull logo, which has been associated with far-right causes.

"Finally, it is reasonable to conclude that legislators and staff who believed they were a particular target of the demonstrators (either because of some protected status or because of their differing political views) would have felt most threatened by their entrance into the Capitol building."

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