I_WorkplaceStudy_2018A 08/30/2018 09:03:39 AM Committee Summary

Speaker Duran called the meeting to order and a quorum was present.  A meeting agenda was distributed to the committee [Attachment A].

Jerry Barry and Ben FitzSimons, Office of Legislative Legal Services (OLLS), facilitated a conversation with the committee about drafting concepts for the complaint process and distributed a list of questions [Attachment B].  The committee discussed whether anyone in the legislative environment should be a mandatory reporter for harassment.  Committee discussion ensued about the impact mandatory reporting would have on the process and allowing the complainant to make a report.

The committee discussed whether the proper standard for discriminatory or sexual harassment should be subjective, which is an action that has the effect of being offensive; objective, which is an action that a reasonable person in the recipient's position would find offensive; or both.  The committee discussed how recommendations on page 136 of the Investigations Law Group (ILG) report were both subjective and objective. The committee also discussed how this reflected current law and if the General Assembly should use the same legal standard outlined in Title VII of the Civil Rights Act of 1964 and case law.

The committee discussed whether additional protections should be given to aides in the complaint process. The committee discussed the differences between different employee classifications, and power structure that exists in the legislature.  The committee discussed that while the complaint process should not offer special protections, however the training may be different depending on employee classification.

The committee discussed whether there should be a prohibition of relationships between members and aides.  Committee members raised the issue that many spouses are also aides and suggested that the policy may need to address this nuance. Discussion followed on how corporations handle these relationships, including disclosing relationships or not allowing relationships between supervisors and subordinates. The committee also discussed putting a definition of consent in the policy but some committee members expressed concern about adding a definition. The committee asked what other legislatures have done. Mr. Barry stated he would review other state policies and provide the committee with additional information. The committee then discussed to whom relationships should be disclosed and it was suggested to disclose such relationships to the human resources (HR) administrator and legislative leadership.

The committee discussed who should oversee the investigation of formal complaints. The committee discussed keeping the process consistent and that every complaint go to the HR administrator, especially for nonpartisan staff.  The committee discussed the complexities if leadership or their staff are the ones being investigated and therefore, the investigation may need to be outsourced to a third-party investigator.  The committee then discussed the idea of an independent panel to oversee the investigation of a legislator. There was disagreement amongst the committee about whether there should be a panel, and if there was one, who would serve on it. The committee decided to continue to discuss the matter at a future time.

The committee discussed how complaints against lobbyists or other third parties should be handled. The committee discussed lobbyists and third parties as customers and vendor relationship.  The committee discussed with Mr. Barry issues of liability with regard to lobbyists and other third parties.  Mr. Barry discussed what other legislatures have done regarding lobbyists.  He referenced parts of other state constitutions similar to section 12 of Article V of the Colorado Constitution, which allows each chamber to adopt rules providing punishment of its members and other persons for certain conduct. The committee again stressed that there be one contact person, but for there to be a different process for lobbyists than employees. The committee discussed whether it was possible to prohibit a third party from doing business in the Capitol and to include stakeholders when deciding on consequences. The committee agreed to continue discussions on this topic in the future.  

The committee discussed who would oversee formal investigations.  The committee discussed what triggers a formal investigation and other factors related to a formal investigation.  Committee discussion ensued about the role of the HR administrator and of a legislative committee in investigations involving a legislator.  The committee further discussed the composition of the new committee, including whether there should be non-legislative members, and the committee operations.  The committee discussed building trust in the process.  The committee agreed to continue discussion of this topic at a later time. The committee recessed.

The committee came back to order.

The committee discussed the potential role and composition of an independent equal employment opportunity (EEO) advisory panel.  Committee discussion included how the HR administrator would interface with the EEO advisory panel.  

The committee discussed who would conduct the investigations of formal complaints. The committee agreed that for nonpartisan staff, the HR administrator could conduct the investigation or contract with a third-party investigator.

The committee then discussed who would investigate complaints against third parties.  The committee determined that more information was needed on this topic.



The committee discussed contracting out investigations of complaints against partisan staff.

The committee discussed who would make the determination of a policy violation.  Mr. Barry explained that investigators just find fact, and do not decide on whether there was a policy violation. The committee asked whether the HR administrator could decide a policy violation.   Mr. FitzSimons explained if the HR administrator conducts the investigation, the supervisor usually decides whether or not there was a violation. If a third-party investigator conducts the investigation, the HR administrator could decide whether or not there was a violation. In response to questions from the committee, Mr. FitzSimons outlined issues that could arise if supervisors where to make the decisions about disciplinary actions. Committee members also expressed concern about the HR administrator being housed in OLLS.  Members discussed having decisions about disciplinary actions be made at the director level with advice from the HR administrator for nonpartisan staff.

The committee discussed who should determine whether or not a partisan staff member had violated the policy.  The committee discussed factors of partisan staff employment, including who partisan staff is employed by and report to in the legislature.  The committee discussed having a central authority be involved in complaints involving nonpartisan or partisan staff and the need for a central repository for documentation to promote consistency.  The committee discussed whether party leadership or an individual legislator should determine whether a partisan staff member has violated the policy.  

The committee discussed whether or not leadership could intervene when a partisan staff member was found to have violated the policy, but the staff person's direct supervisor did not take any action.

The committee then discussed who will make recommendations of discipline after a violation has been determined to have occurred.  The committee discussed whether the EEO advisory panel could impose disciplinary actions or only make recommendations for disciplinary action.

Committee recessed for lunch.

The committee came back to order.



Patricia McMahon, U.S. Equal Employment Opportunity Commission, and Christine Breen,Truhlar and Truhlar, came to the table. Andrea Johnson, National Women's Law Center, appeared via video conference.

Ms. Johnson testified about how to change culture and emphasized the importance leadership has on this issue.  Ms. Johnson stressed the importance of accountability and transparency to credibility. She encouraged the committee to make guidelines for what harassment is and what is seen as creditable. Ms. Johnson discussed the possible perception that HR employees are working to protect the institution. She also suggested that a harassment policy be more than just about what is illegal, but also address what is inappropriate behavior.



Ms. Johnson then testified about effective training, but pointed out that training should not be the only tool used to address harassment in the workplace. Ms. Johnson suggested that all employees under the policy be required to participate annually in training and that some training be separated for different groups in the workplace. Ms. Johnson pointed to Maryland legislation that requires lobbyists to attend sexual harassment training.  Ms. Johnson suggested that harassment training not be separate from workplace culture training. She explained that bystanders intervention, who to report to, investigation process, resources available, and consequences should all be included in the training, with examples tailored to the workplace.



Finally, Ms. Johnson reviewed transparency and the importance of reporting data related to complaints. Ms. Johnson stressed that reports must protect confidentially, provide aggregated information related to the number of claims, settlements paid out, or other data as to not identify any individuals.

Ms. McMahon testified on compliance and reporting. Ms. McMahon discussed the importance of leadership in bringing about change in the workplace. Ms. McMahon recalled past experiences where harassment training did not work because leadership was not supportive.  Ms. McMahon stressed that in order to have effective culture change, the highest level in the organization must support the change.

Ms. Breen testified on her experience of working with individuals and small business on breaches of Title VII and how to promote a good workplace.  Ms. Breen discussed case law and how the courts have interpreted the phrase "severe and pervasive" as it relates to harassment.  She suggested that the new policy should state that bullying behavior is not tolerated.  Ms. Breen pointed out that the current policy spells out an employee’s rights but fails to acknowledge the right to file with EEO Commission.



Ms. Breen then testified on what makes effective training. Ms. Breen testified that she had trained General Assembly staff and legislators before and heard both positive and negative feedback. Ms. Breen discussed the importance of annual and outside expert training.  Ms. Breen referenced the footnote on page 132 of the ILG report and discussed confidentiality and the Colorado Open Records Act.

Ms. Breen expressed her concerns regarding designating legislators as EEO trainers as suggested on page 135 of the ILG report.  She also suggested that no more than 25 people attend a training at a time, that training should be at least two hours long, and that training should be tailored to address power dynamics in the workplace.

In response to questions from the committee, Ms. Johnson discussed best practices related to transparency, including aggregating data related to the number of claims and settlement information.  She discussed the complexities of transparency when a public official is accused of harassment, and referenced how such matters are handled by Congress.



In response to committee questions, the panelists discussed the importance of education, developing a broad policy, inclusion of role playing and bias awareness in training, and reporting of all inappropriate behavior to improve culture.  

In response to questions from the committee regarding third parties in the workplace, Ms. McMahon replied that, if possible, anyone who deals with General Assembly staff should be part of training.



Ms. Breen replied that third-party organizations must take responsibility for their employees.



Ms. Johnson reviewed policies in other states, including proposed legislation in California regarding lobbyist  and sexual harassment claims.

The committee asked Mr. FitzSimons how much it cost to hire an outside facilitator. Mr. FitzSimons stated he did not have that information available, but would follow up with the committee.

In response to committee questions regarding whether there was any research showing that good training decreases investigation costs, Ms. Breen testified about HR employees protecting the company, rather than individual employees.

Ms. McMahon discussed how training can be effective.

Committee discussion with the panelist ensued about training and independent EEO panel.



Ms. Johnson responded that the panel should be as independent as possible. She mentioned that Congress has an Office of Compliance and there has been an effort to increase funding and authority to make it effective and independent.



Ms. Breen responded by highlighting that effective training could include role playing, limiting training sessions to 25 people, providing separate trainings for different categories of people in the workplace, and prohibiting cell phones and computers.



Ms. Johnson discussed providing information about a culture survey during the training.

Tim Lopez, representing himself, testified in front the committee. He discussed the work of the committee, the involvement of the panelists, and the importance of a policy to address the timeline of investigations versus the length of the session.  Mr. Lopez discussed the independent EEO panel.

Mr. FitzSimons provided an overview of the ILG recommendation regarding workplace culture on pages 84-87 of the ILG report.  He outlined the recommendations that include: having the General Assembly commit to and communicate higher expectations; creating additional protection for interns; creating a bicameral orientation for interns; and conducting positive outreach, training, team building,  listening sessions, coaching, workplace assessments, and awareness campaigns.  The report also recommended that the General Assembly implement core values, and offer training beyond legal compliance.



Mr. FitzSimons reviewed recommendation regarding training include requirements for registered lobbyist, legislators, and interns.

He discussed the recommendations related to an annual public report that includes data on informal and formal complaints and training.

The committee returned to discussion about the complaint procedure and the questions outlined in Attachment B.  Mr. Barry facilitated the committee's discussion about who would determine appropriate discipline. The committee discussed having a central office to file a complaint, providing a victim advocate, and allowing the complainant to decide if the complaint is formal or informal.  The committee discussed the role of HR staff, third party investigators, and a legislative workplace culture committee.

The committee discussed allowing the complainant to decide if a formal or informal complaint should be filed unless the safety of the community is involved, and the role of the HR staff in determining what kind of complaint is filed.  The committee discussed what safety of the community means.  The committee discussed the role of a District Attorney and the General Assembly in incidents that involve criminal allegations. Mr. FitzSimons discussed how an administrative process and criminal process can be conducted simultaneously. Mr. FitzSimons handed out a flow chart to the committee with the resolution process [Attachment C]. The committee discussed the resolution process outlined in the flowchart.    

The committee discussed whether there should be guidelines or decisional factors that should be used in making discipline decisions.  Mr. Barry explained how guidelines could be helpful with having consistency.  He asked who would prepare those guidelines and who would approve them.  Members suggested that the HR staff and OLLS staff could prepare the guidelines and bring it to the Executive Committee.  Committee discussion about the guidelines ensued.  

The committee discussed the ability of the director of OLLS to appoint someone to oversee complaints against HR employees.

Mr. Barry distributed a document containing questions regarding culture and training to the committee [Attachment D].  The committee discussed whether there should be a separate workplace culture policy or if a workplace culture policy should be incorporated into a workplace harassment policy.  The committee discussed creating two separate policies.  Mr. FitzSimons responded to questions about establishing a workplace culture policy and a separate workplace harassment policy.  The committee further discussed drafting two separate policies.  

Mr. Barry asked the committee about the respectful workplace expectation policy outlined on pages 124 and 125 of the ILG report.  A packet of codes of conducts from various Colorado executive departments was distributed to the committee [Attachment E].  The Committee discussed with Mr. Barry aspects of a code of conduct or respectful workplace expectation policy.

 The committee discussed whether there should be an annual awareness campaign.  Mr. Fitzsimons responded to questions about conducting an annual awareness campaign.  The committee discussed giving the HR administrator the discretion to conduct awareness campaign, as needed.

The committee discussed providing training on workplace culture with Mr. Barry and elements of such training.

The committee discussed adopting a mission or vision statement, like that of the Kentucky legislature, outlined on page 88 of the ILG report.  Mr. Barry mentioned that OLLS has a mission statement.  The committee suggested that OLLS staff develop a mission statement for the General Assembly, including third parties.  

The committee discussed creating a position of workplace culture specialist or another HR position to assist the HR administrator. Discussion ensued about the level of staffing needed to address the HR functions and training for the General Assembly.  

The committee also discussed conducting an annual or biannual survey to track culture change. The committee further discussed training including updating training, including training in new member orientation, and conducting training annually.  The committee discussed including celebrations of successes in the legislative culture.  

The committee continued to discuss elements of the training.  The committee discussed annual and biannual training, training requirements for new members, and the timing of the trainings.  The committee discussed allowing the HR administrator to provide additional training, as necessary.  Committee discussion ensued about requiring training of legislators and addressing both workplace harassment and culture in the trainings.

Mr. Barry asked whether there should be different training for legislators who have previously attended several training, to which the committee determined the training should not be different.

The committee discussed what, if any, training should be offered to registered and volunteer lobbyist.  Committee discussion ensued about the legislators ability to regulate lobbyists.  Mr. Barry confirmed that the Secretary of State regulates lobbyists, and referenced Joint Rule 36 and Secretary of State rules regarding lobbyists.  

The committee discussed training for aides, interns, and other vulnerable populations.

The committee discussed training offered to nonpartisan and partisan staff.  

The committee discussed whether or not to establish a designation for members or staff who attend a certain number of classes.  Committee members discussed potential issues with creating such a designation.  

The committee discussed the progress of the committee and potentially rescheduling the September 5 meeting. The committee recessed.  

Committee came back to order. The committee agreed to move the next meeting to September 13 at 9 a.m.