North Dakota lawmakers work to update harassment policy

By Mary Steuer (North Dakota Monitor)

BISMARCK, N.D. (North Dakota Monitor) – Lawmakers are reviewing the Legislature’s workplace harassment policy following a rise in complaints to the North Dakota Ethics Commission.

The policy, which dates back to 2018, outlines a process for reporting and investigating allegations of sexual harassment or discrimination-based hostility. It covers not just lawmakers, but legislative staff as well as third parties like lobbyists and media.

According to Emily Thompson, director of Legislative Council’s Legal Division, no allegations have been filed under the policy since it was adopted.

Still, she said the buzz surrounding recent complaints filed with the Ethics Commission prompted legislative staff and lawmakers to reevaluate the policy. The goal is to make sure the Legislature is prepared to handle harassment complaints if and when they do come up.

“When looking at the Ethics Commission and all of the different complaints that have been arising in media attention, we took a closer look at our policy against workplace harassment,” Thompson told members of the Legislative Procedure and Arrangements Committee last week.

The Legislature adopted the rules ahead of the 2019 session in wake of the #MeToo movement, said Sen. Kathy Hogan, D-Fargo, who helped spearhead the policy.

“I went to find out what our harassment policy was, and we didn’t have one,” Hogan said in a Friday interview.

The policy puts legislative leadership in charge of receiving harassment complaints. There’s also a complaint form and a checklist to guide officials through the intake and investigation procedures.

Hogan said she’s interested in revising the policy to allow some complaints to be resolved informally, like through third-party mediation. That could help address minor disputes between members of the Legislature that don’t warrant a full investigation, she said.

“How do you screen the cases, the initial reports, to try and resolve them at the lowest level?” Hogan said. “That’s the kind of issue we’re beginning to look at now.”

Rep. Zac Ista, D-Grand Forks, proposed adding a provision to allow complaints that don’t clearly state violations of the harassment policy to be dismissed.

There also was discussion over whether the policy should include greater protections for people accused of unfounded complaints. Currently, any records related to complaints would become public after the complaints are investigated, or within 75 days after the complaint is filed, Thompson said.

“What would happen if a review panel determined the complaint was frivolous, and the potential damage for reputation by it not being confidential?” said House Majority Leader Rep. Mike Lefor, R-Dickinson.

Lefor questioned whether the complaint process should more closely mirror the Ethics Commission’s, which keeps most complaints confidential unless they are substantiated and the accused has an opportunity to appeal.

House Minority Leader Rep. Josh Boschee, D-Fargo, said it may also be worth exploring confidentiality protections for people who come forward to report potential harassment

“I can share that in at least one instance, maybe two, where people came forward concerned about this type of behavior,” he said. “They stopped from moving forward with the process once they found out it was going to become public at some point.”

Committee chair Sen. Jerry Klein, R-Fessenden, indicated the committee would work with Legislative Council on draft revisions to the harassment policy before its next meeting this fall.

The last time the policy underwent revisions was after the 2021 expulsion of former Rep. Luke Simons from the statehouse related to harassment allegations, Hogan said.

The Legislature added a provision requiring a panel of lawmakers to review the complaint within 48 hours after it is submitted, for example. Hogan said the committee is now considering softening that deadline.

“We wanted to be really aggressive,” she said. “We might have gone too far.”

The Legislature also expanded its mandatory harassment training, which takes place before each session, Hogan said. According to an agenda on the Legislature’s website, the 2023 training was an hour and 45 minutes and was combined with presentations on legislative ethics. That included a 15-minute presentation for legislative leaders tasked with receiving potential complaints.

Although there had been allegations of inappropriate behavior involving Simons dating back to 2018, no formal harassment complaints were ever filed, The Bismarck Tribune reported in 2021.

Legislative Council Director John Bjornson had kept notes about his discussions with staff about Simons.

In a February 2021 note, Bjornson wrote: “Clearly there is a major reluctance to file a formal complaint because they believe there is a lack of support from legislators for staff regardless of the knowledge that certain legislators are habitual offenders of decency,” the Tribune reported.

In a Monday interview, Bjornson said he’s hopeful the Legislature’s climate has improved in the wake of Simons’ expulsion.

“I think that people saw that there is some degree of discipline for someone that acts inappropriately,” he said. “We have not had any complaints filed, so it’s hard to tell.”