Accountability for Government Officers and Employees

Right From the Start

In the aftermath of the stories regarding sexual assault and sexual harassment leveled by a variety of actresses and others against Hollywood strongman Harvey Weinstein other women have now come forward with similar allegations against prominent politicians and news media personalities. Wow! You could have knocked me over with a feather (sarcasm). Back as far as I can remember powerful politicians have been treating women as if they were a smorgasbord available at any time. Presidents John F. Kennedy (D), Lyndon B. Johnson (D), and Bill Clinton (D). It’s not that other presidents didn’t have affairs, it’s just that these particular presidents used and discarded women like old socks.

Members of Congress were just as voracious and we know that Senator Al Franken and Congressman John Conyers were neither the first nor the last to believe they were immune from the common standards of decency; e.g. Sens. Robert Packwood (R-OR), Larry Craig (R-ID), Ted Kennedy (D-MA), Christopher Dodd (D-CT) etc.

Now in righteous indignation members of the Senate and the House of Representatives (including Speaker of the House Paul Ryan) are demanding mandatory participation in sexual harassment education. While a smaller and less influential group are demanding public disclosure of the secretive settlements of sexual harassment claims using taxpayer dollars to buy silence. And an even smaller and less influential group are demanding that members be held personally liable for sexual harassment claims.

It is the latter two groups upon which I would like to focus – and not just for sexual harassment claims.

As a former officer in a Fortune 500 company I did the litany of discrimination and harassment seminars and learned not a thing that had not already been instilled in me by mother and father. In marked contrast, prior to becoming an officer, I worked for a woman who turned out to be the best supervisor I have ever had. What I learned in addition about how to manage large groups effectively was the nuances of how women perceive the actions of men. Such nuances are not a universal – different women react differently. The point, however, is that one needs to be cognizant about how they might be perceived – a good lesson whether you are dealing with men or women. (This would have been a good lesson for Mr. Franken who seems to think that because he was a “comedian” that groping a woman’s derriere was just “all in fun.”)

Mr. Ryan’s request for sexual harassment seminars are pointless for those who have learned the basic requirements of civility. However, the history of Congress leaves one to understand that there a quite a number of the members who have not learned much in their lifetimes. In point of fact political office often seems to attract those who command respect by virtue of office rather than by virtue of action.

Let’s move on to the request for disclosures of those members of Congress who have “settled” sexual harassment claims (or claims for workplace harassment or intimidation of any kind). As usual the process for bringing and resolving such claims are done in secrecy so as to protect the members of Congress. Shining a bright light on those miscreants would do more to dissuade future abhorrent conduct than anything else.

But the most important step to mitigate such conduct would be to hold the members of Congress (and federal, state and local government officers and employees) personally liable for damages. And this would be likewise true for any other intentional act by an officer or employee of government that causes damages.

Historically, government has enjoyed protection from claims by citizens under what is known as “sovereign immunity.” It began under the false notion that the “king (sovereign), because he was king, could do no wrong. The doctrine while remaining largely intact drew a different rationale in a democracy based on the concept that individuals should not be allowed to burden the “people’s treasury” with such claims. Further evolution has reduced the application of sovereign immunity by either limiting its scope (usually to acts of negligence) or imposing a bureaucratic process for initiating a claim that discourages pursuit of such claims. The whole doctrine of sovereign immunity needs to be re-examined. Most importantly, taxpayers should be held harmless for the intentional acts of public officers and employees.

When Mr. Franken gropes a woman, when Mr. Conyers importunes a staff member with sexual innuendo, when former President Bill Clinton forces himself on a woman or engages a young staffer in oral sex, when former Governor Neil Goldschmidt (D-OR) repeatedly rapes a fourteen year old girl over multiple years, when former Portland Mayor Sam Adams pursues a teenage boy in the men’s room of City Hall, or when former Congressman David Wu (D-OR) is accused of a forcible sexual encounter they should be held personally accountable without the protection of government and as in the case of Mr. Goldschmidt and Mr. Adams a “blind-eyed” press.

And similarly when government officers and employees act illegally – particularly when such action is designed to reward a supporter or punish an opponent – that officer or employee should be held personally accountable without the protection of government. When former Secretary of State Hillary Clinton aids donors to Mr. Clinton and her foundation in exchange for favorable government treatment, when former Attorney General Eric Holder refuses to enforce legitimate congressional subpoenas, when former President Richard Nixon authorizes a burglary or seeks to cover-up for its participants, when Lois Lerner denies timely approval of an IRS designation because they represent those who oppose President Barack Obama, or when Mr. Holder, Ms. Clinton, Ms. Lerner and Mr. Obama destroy documents or refuse to provide documents on a timely basis, they should be held personally accountable without the protection of government.

But in order to accomplish any of this we need the concurrence of the United States Congress (and the Oregon legislature for state and local application). And there is about as much chance of something substantive coming of that as there is in seeing Congress initiating a constitutional amendment for term limits.