State Rep. Mike Nearman faces two criminal charges in connection with his opening of a door that allowed anti-lockdown protesters to enter a closed Capitol building during a Dec. 21 special session of the Oregon Legislature.
According to filings in Marion County Circuit Court, Nearman, a Republican from a Mid-Willamette Valley district, faces one count of first-degree official misconduct and one count of second-degree criminal trespass. Both are misdemeanors; maximum punishments are one year in jail and a $6,250 fine.
Nearman was indicted after Oregon State Police turned over the results of its investigation to the district attorney in Marion County, where Salem is.
Prosecutors said that Nearman, "being a public servant, did unlawfully and knowingly perform an act which constituted an unauthorized exercise of his official duties, with intent to obtain a benefit or to harm another."
Nearman, 57, is a former software engineer in his fourth term from District 23, which stretches over Yamhill, Polk, Marion and Benton counties. He lives outside of Independence, although the city itself is in District 20.
The Capitol has been closed to the public since March 18, 2020, at the onset of the coronavirus pandemic. The House and Senate have limited access to floor sessions to members and staff. All committee meetings, including public testimony, have been virtual.
Video surveillance footage that went viral shows Nearman opening a door that allowed anti-lockdown protesters to enter a Capitol vestibule — police eventually ejected them — and re-entering the building from the south side by using an access card. He did walk by the west entrance, but police were gathered inside.
Police rebuffed a second attempt by protesters later to breach the Capitol at the west entrance. Five people were arrested, at least one of them for using a chemical irritant against police, others for shoving news reporters and photographers covering the protest.
A few days after House Speaker Tina Kotek disclosed Nearman's identity — but not the footage — based on information from State Police, Nearman said this in a statement Jan. 12:
"I do think that when … the Oregon Constitution says that the legislative proceedings shall be 'open,' it means open," he said in a statement. "And as anyone who has spent the last nine months staring at a screen doing virtual meetings will tell you, it's not the same thing as being open."
Lawmakers did complete action on the four bills put before the Dec. 21 special session, which ended in one day, without further disruption. The protesters did not reach the House and Senate chambers or the office wings.
Republicans, who are the minority party in both chambers, have pressed for reopening the Capitol. But with at least four people reporting coronavirus infections in the House during the 2021 session — there has been no such reports in the Senate — a reopening appears unlikely in the near future.
More actions pending
A conviction on either misdemeanor count, or both, would not result in Nearman's automatic expulsion from the Oregon Legislature. Only felony convictions result in automatic ousters from the Legislature, as a result of a 1994 constitutional change.
However, Nearman already has faced actions by Kotek, who stripped Nearman of his committee assignments and fined him $2,000 for the cost of damage to west entry doors by the protesters. Nearman also agreed to surrender the electronic access card that allows him into the Capitol, and must give 24-hour notice before he enters the Capitol. He cannot allow access to unauthorized persons.
Kotek and other also have filed a complaint with the Legislative Equity Office against Nearman. The complaint is pending in the House Committee on Conduct, which is divided equally between majority Democrats and minority Republicans. The committee has not started public proceedings yet, choosing to wait until the criminal investigation was completed.
The committee can recommend a range of penalties, the ultimate one being expulsion from the House, on constitutional grounds of "disruptive behavior."
Kotek renewed her earlier call for Nearman to resign his seat.
"Rep. Nearman put every person in the Capitol in serious danger and created fear among Capitol staff and legislators," she said in a tweet. "I called on him to resign in January and renew my call in light of today's charges."
The committee did call for expulsion in the recent case of Rep. Diego Hernandez, a three-term Democrat from Portland accused of creating a hostile work environment and sexual harassment. Of the five women who came forward against Hernandez, the committee concluded there was substantial evidence in three cases.
Hernandez announced his resignation on Feb. 22, one day before the House scheduled action on the committee recommendation, and it took effect March 15. Neither chamber of the Oregon Legislature has voted to expel a member since statehood, although it has happened in other states.
The committee also has a complaint pending against Democratic Rep. Brad Witt of Clatskanie. It was filed by Republican Rep. Vikki Breese-Iverson of Prineville, who accused Witt of sexual harassment in a series of text messages.
Expulsion of a legislator under the Oregon Constitution requires a two-thirds majority vote. In the House, that number would be 40. The current party lineup is 37 Democrats, 23 Republicans.
House Republican Leader Christine Drazan of Canby said no lawmaker is above the law.
"State legislators are the voices of their community," she said. "The charges have been filed in Marion County Circuit Court and I trust the judicial process to be fair and objective."
Senate Republican Leader Fred Girod of Lyons also commented over the weekend:
"Democrats have overseen widespread and constant violence in Portland. Progressives have turned a blind eye to assaults against first responders, vandalism, and looting with sparse criticism from major Democrats. At this point, it looks like Rep. Nearman simply opened a door. No matter who you are, no one is above the law. We should trust our judicial system to air out all the facts and judge them fairly."
House Majority Leader Barbara Smith Warner joined Kotek's call for Nearman's resignation. Smith Warner, a Democrat from Portland, said the Dec. 21 breach set the stage for the insurrection Jan. 6 at the U.S. Capitol in Washington, led by many of the same elements.
"In many ways, the attack on the Oregon Capitol was a dress rehearsal for the violent insurgency we all witnessed at the U.S. Capitol in January. We cannot allow this anti-democratic extremism to be normalized. Rep. Nearman's continued presence as a legislator in the Oregon House is an affront to everything we believe in as Oregonians.
"The rioters Rep. Nearman allowed in the building attacked Oregon State Police. They are tied to extremist white supremacist movements. These actions are an assault on the safety and well-being of everyone who was present that day, especially our BIPOC staff and legislators, whose health and safety were threatened. And many of us are still working through that trauma today. There must be accountability, and it starts with denouncing white supremacy and bigotry in our Capitol.
"Nearman should have resigned in January, the moment that security footage confirmed his involvement and assistance in the attack. Given today's charges, it's clear that he's got to go. I urge every one of my colleagues, in every caucus, to call this out for what it is and join me in demanding that Nearman resign immediately."
NOTE: Adds statement from House Majority Leader Barbara Smith Warner, D-Portland.
Three Oregon lawmakers who lost their seats after facing criminal charges:
• Sen. Peg Jolin, D-Cottage Grove, who resigned in 1993 after she was convicted on eight felony counts in 1992. The case involved a fundraising appeal in which she said she had a campaign deficit, when she actually had a surplus. At the time, expulsion from the Legislature upon a felony conviction was not automatic; it is now. Jolin died of cancer in 2001.
• Rep. Dan Doyle, R-Salem, who had been named House co-chairman of the Legislature's joint budget panel when he resigned in 2005 and pleaded guilty to filing false campaign finance reports, a felony. He resigned from the Oregon State Bar and served time in Marion County jail. He diverted up to $150,000 in campaign contributions for personal use, a practice that is now barred.
• Rep. Kelley Wirth, D-Corvallis, who resigned in 2005 after she was charged with one count of unlawful possession of methamphetamine, a felony. Salem police turned up a small amount of the illegal stimulant during a search of Wirth's car, which was parked outside the Capitol in Salem when another woman rammed her car into Wirth's car and injured Wirth. The woman, who was arrested, asserted that Wirth was having an affair with her boyfriend, a janitor at the Capitol; Wirth denied it.
Possession of small amounts of methamphetamine today is a violation punishable by a $100 fine, unless the person consents to a health assessment, under a ballot measure Oregon voters approved last year.
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