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Rep. Hernandez sues legislative leaders to block possible expulsion

State Rep. Diego Hernandez has sued the Oregon Legislature, the House speaker and the co-leaders and a staffer of its conduct committee that recommended his expulsion from the House on allegations of sexual harassment and creating a hostile work environment.

The Portland Democrat, acting through his lawyer Kevin Lafky, filed a 105-page lawsuit Friday, Feb. 12, in Marion County Circuit Court. He has asked the court to block further proceedings through an injunction, invalidate the legislative rule barring sexual harassment — a rule he argues is flawed — and grant him $1 million in noneconomic damages.

The House has not set a date for a potential expulsion vote, which would be a first since Oregon became a state in 1859, two years after the Oregon Constitution was written in 1857. A two-thirds majority would be required for expulsion.

Lawmakers have not commented on the lawsuit. State offices, including the courts, were closed for Presidents Day Monday.

Hernandez signaled early on he was considering some kind of lawsuit last year, when he gave notice of a tort claim against the state. In addition to the Oregon Legislature and the House, the lawsuit names Speaker Tina Kotek, D-Portland; Reps. Julie Fahey, D-Eugene, and Ron Noble, R-McMinnville, the co-leaders of the House Committee on Conduct, and Jackie Sandmeyer, the interim legislative equity officer, who is the staff for the committee. The investigation was conducted by the Portland law firm of Jackson Lewis, although it was channeled through Sandmeyer to the committee.

The investigators concluded they found evidence to support allegations by three of the five people involved, but they said the legislative rule required the committee to determine if there were violations by a member.

Although none of the five people were identified in the report — two people came forward during the hearings, but their allegations were turned aside by the committee — Hernandez said the three involved were a lobbyist and aides to two local elected officials.

The committee voted 4-0 Feb. 5 to recommend the expulsion of Hernandez, 33, a three-term representative from District 47 in East Portland, on 18 counts of violating the legislative rule. Originally meant for the Legislature and staff, the rule was broadened in 2019 to cover anyone doing business with the Legislature.

Hernandez said the rule is invalid because it violated his federal constitutional right to respond — he was allowed to file a written rebuttal beforehand, but his only participation during the committee hearings was in the form of a written statement that Lafky read aloud on his behalf.

“Rule 27 is applied on a case-by-case basis without creating a binding rule of conduct, applies to only a few individuals rather than the public at large, and does not bear all the hallmarks of traditional legislation in its character or effect,” according to Hernandez’s complaint.

Hernandez also argued he was being singled out because he is Latino — and all the defendants are white — and that the recommendation violates the federal constitutional guarantee of equal protection of the laws.

“The Legislature has had many Caucasian members who have committed much more severe acts than plaintiff, but have never proposed expulsion for a Caucasian member,” his suit alleges.

“Fahey, Noble, Sandmeyer and Kotek’s actions to expel plaintiff are based substantially on plaintiff’s race and/or national origin and thus, violate plaintiff’s 14th Amendment right to equal protection.”

$1 million in damages

When she announced the investigation in May 2020, Kotek stripped Hernandez of his interim committee assignments, barred him from entering the Capitol without 24-hour advance notice — although the Capitol has been closed to the public since the start of the pandemic March 18, 2020 — and called on him to resign. He won reelection in a three-way race with 49.3% of the votes cast.

Kotek did give him committee assignments for the 2021 session.

In addition to Kotek, numerous officials have urged Hernandez to resign, among them 25 Democratic colleagues excluding Kotek and the two on the Conduct Committee, Gov. Kate Brown, Treasurer Tobias Read, and 17 organizations and 130 individuals through an open letter.

Hernandez also asked the court to grant him $1 million in noneconomic damages, often known as “pain-and-suffering” damages, for intangible costs.

According to the lawsuit: “As a direct, proximate, and foreseeable result Fahey, Noble, Sandmeyer and Kotek’s illegal deprivation of plaintiff’s constitutional rights, plaintiff has endured emotional distress in the form of anguish, embarrassment, loss of reputation, fear, worry, grief, anger, confusion, frustration, loss of sleep, and interference with usual life activities.”