Democratic state Senators Ben Allen, of Santa Monica, left, and Robert Hertzberg, of Van Nuys, leave the Senate to attend a Democratic caucus meeting Thursday, Feb. 22, 2018, in Sacramento, Calif. The Senate is expected to take up a resolution, introduced by Senate President Pro Tem Kevin de Leon, D-Los Angeles, to expel state Sen. Tony Mendoza, D-Artesia, over accusations of sexual misconduct. (AP Photo/Rich Pedroncelli)

California's balancing act for harassment discipline

February 23, 2018 - 8:01 pm

SACRAMENTO, Calif. (AP) — California Sen. Tony Mendoza's resignation this week spared his fellow lawmakers from a difficult decision about appropriate punishment after an investigation found he likely engaged in flirtatious and sexually suggestive behavior with a half-dozen women.

But the Legislature's reckoning with sexual misconduct in its ranks is far from over, with more investigations pending and perhaps even tougher choices on the horizon.

Investigators have wrapped up their report on allegations about Sen. Bob Hertzberg, a Van Nuys Democrat nicknamed "Hugsberg" for his tendency to greet people — men and women alike — with hugs. And may lawmakers may have to decide if he faces punishment.

Public allegations against lawmakers span the spectrum — from pushing a woman into a bathroom and masturbating in front of her to Hertzberg's hugs — raising thorny questions about how to proceed.

Expelling Mendoza would have set a precedent for the type of behavior that warrants the Legislature's most severe punishment. His resignation sidestepped that decision but doesn't create a clear standard for applying discipline, said Samantha Corbin, a lobbyist and co-founder of the group We Said Enough that formed last fall when the scandal broke.

"So that leaves decision making subject to interpretation and kind of almost a popularity contest," Corbin said. "Do we like the senator enough to disclose the information and the claims against him and then expel him? Or do we want to maintain the files ourselves?"

Corbin and other We Said Enough leaders have demanded that the Legislature adopt consistent and transparent policies for handling harassment so women who experience it feel confident they can speak up without risking their careers.

Mendoza was the third California lawmaker and first senator to resign since the #MeToo movement pointed a spotlight at sexual harassment in powerful institutions. Fellow Los Angeles-area Democrats Matt Dababneh and Raul Bocanegra resigned from the Assembly.

Earlier this month, the Assembly and Senate released 11 years of documents outlining sexual misconduct investigations and discipline against lawmakers and staff. Those documents revealed complaints against four sitting lawmakers, including Mendoza, for behavior ranging from unwanted touching to crude conversations about sex and about a half dozen complaints against staff members. Eight allegations of sexual harassment are pending before the Assembly, according to additional documents, but it's not clear how many target lawmakers.

The Senate has not said how many cases are pending. Hertzberg said the investigation of his behavior has finished but no details of the findings have been disclosed.

However, Sen. Connie Leyva, D-Chino, two other lawmakers — one current, one former — told the Sacramento Bee that Hertzberg's hugs made them uncomfortable. He also was accused of grabbing a staff member, dancing and singing to her in 2015. He has apologized to the woman and anyone else who found his hugs unwanted.

Dan Reeves, the chief of staff to Senate President Pro Tem Kevin de Leon, said lawmakers would follow the same process used to evaluate the accusations against Mendoza — the Rules Committee will discuss the findings in secret proceedings, and if it recommends discipline, will allow other lawmakers to review the findings. He did not lay out a timeline.

Employment lawyers said there's no clear-cut line where behavior constitutes harassment and also no one-size-fits-all punishment.

"Is it a hostile work environment for someone to hug people? Probably not, particularly if he is hugging people of both sexes or if it's just a legitimate hug rather than a lecherous one," said Tom Spiggle, who founded a Virginia law firm that focuses on workplace issues.

Jeff Polsky, a San Francisco employment attorney, said employers are required to take steps to ensure that unwanted conduct doesn't continue and that can take different forms.

"If it's somebody misunderstanding social situations, maybe counseling is sufficient," Polsky said. "If it's more, sometimes people need training."

In the Legislature, discipline can include a public or private reprimand, formal censure, suspension with or without pay and expulsion.

Democratic Assemblywoman Cristina Garcia took a voluntary unpaid leave during a misconduct investigation. Garcia, a Democrat from the Los Angeles area and a vocal leader of the #MeToo movement, denies groping a former male legislative staffer who worked for a colleague in 2014. She also denies running an office rife with alcohol consumption and talk of sex.

She has called the allegations a political smear designed to discredit her record.

Mendoza's resignation Thursday came after hours of closed-door meetings where Senate Democrats discussed the case and punishment. Afterward, Sen. Ben Allen, D-Santa Monica, quipped "the saga continues."

"It's my sense that the most severe cases have been exposed and dealt with," he said, then added: "But you never know what else is out there."

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