Attorneys: House may investigate sexual harassment charges
By HOWARD FISCHER Capitol Media Services
Nov. 10, 2017
Attorneys for the state House say the chamber has the right to investigate charges of sexual harassment against Rep. Don Shooter — and even discipline him if lawmakers find him guilty — even though the Yuma Republican was not a representative at the time of the alleged incidents.
Matt Specht, spokesman for House GOP leadership, said the rules of the chamber specifically say that the House “may punish its members for disorderly behavior.’’ And the Arizona Constitution even allows for a member to be expelled if two-thirds of his or her colleagues agree.
“Do you see anything in House rules suggesting that it is not broad enough to cover behavior that occurred before House membership?’’ he asked.
But attorney Paul Bender, who teaches constitutional law at Arizona State University, said it may be an error to interpret those rules to allow the House to punish someone for things that were done before a lawmaker took office.
The questions come as House Speaker J.D. Mesnard on Thursday appointed seven staffers to an investigative team to look into not only the charges leveled by Rep. Michelle Ugenti-Rita, R-Scottsdale, against Shooter. There also is a claim by lobbyist Marilyn Rodriguez that Shooter touched her inappropriately.
Separately, Reps. Athena Salman, D-Tempe, and Winona Benally, D-Window Rock, have filed complaints accusing Shooter of inappropriate behavior.
And Majority Whip Kelly Townsend, R-Mesa, said she, too, has been the victim of unwanted sexual comments, though not from Shooter.
The panel also will review claims by Shooter that Ugenti-Rita herself is guilty of unethical conduct, at least in part because she entered into a romantic relationship with a House staffer.
Mesnard chose two staff attorneys who are considered to be nonpartisan: Tim Fleming who is the attorney in charge of rules and Jim Drake, the chief clerk of the House. There also are the top lawyers for both parties in the House and additional partisan staffers, though the Republicans outnumber Democrats by one.
But that still leaves the question of what allegations can be investigated -- and what can be done if they find Shooter guilty of “disorderly behavior.’’
The most serious allegations against Shooter, leveled by Ugenti-Rita, occurred while he was still in the state Senate. That includes comments about her breasts, showing up at her hotel room door with a six-pack of Coronas, and proclamations of wanting to be with her while telling her he was a “very powerful senator.’’
Senate President Steve Yarbrough said his chamber lost any jurisdiction over Shooter after he moved to the House at the beginning of this year. That would leave only the House, where he now serves, with any ability to sanction him if they find him guilty.
The House rules come directly from the Arizona Constitution which says that “each house may punish its members for disorderly behavior, and may, with the concurrence of two-thirds of its members, expel any member.’’
Specht acknowledged that the provision does not define “disorderly behavior.’’
“House attorneys interpret ‘disorderly behavior’ to mean any behavior detrimental to the business of the House,’’ he told Capitol Media Services. He said that gives lawmakers the discretion to discipline members “for disorderly behavior that affects the business of the House, regardless of when that behavior occurred.’’
And Specht also noted that there is no statute of limitations within the constitutional provision.
Bender, however, said it’s not that simple.
“There may be an argument that because of what he did (before becoming a House member) he’s somehow disqualified from serving,’’ he said. “But I don’t know what that argument would be.’’
Where the situation gets murky, Bender said, is what punishment the House seeks to impose if there is a finding of guilt.
He said the constitution and the rules appear to suggest that discipline short of removal on grounds of “disorderly behavior’’ can be accomplished by a simple majority vote. Bender said it would appear be improper for just 31 members of the 60-member House to take action against a lawmaker for something that occurred in some cases years before he became a representative.
“I don’t think they can discipline him,’’ he said.
Bender conceded, though, that the constitutional right of both the House and Senate to eject members may provide a virtual legal carte blanche. He said that would suggest that with 40 votes they could expel a lawmaker for no reason at all, as long as it was not done because of the person’s race, gender or any other legally protected status.
Still, he said, an argument might be made that conduct which predates a lawmakers service cannot be grounds to take action against that person.
“I don’t think any of this is clear,’’ Bender said.
Melissa Ho, Shooter’s legal counsel, had no comment on the subject.