Dauphin County District Attorney Fran Chardo speaks at a press conference on sexual assault allegations against former Rep. Brian Ellis on Monday, August 26, 2019. Following a grand jury report, he did not bring up charges (Capital-Star photo).
A Dauphin County grand jury won’t recommended any charges against a former state lawmaker accused of sexual assault. But it is recommending that the Pennsylvania General Assembly create a new independent office to investigate legislative misconduct — sexual or otherwise.
“We need the wisdoms of citizens to improve our system,” Dauphin County District Attorney Fran Chardo said at a Monday morning press conference in Harrisburg, where he announced that charges would not be filed against ex-state Rep. Brian Ellis, R-Butler.
The woman, who is not identified in the report, filed a formal complaint with the House Republican caucus a week before Ellis stepped down. House Republican leadership had called for Ellis to resign soon after the allegations became public.
Chardo said that the “facts laid out in this report establish the existence of crime,” but added that he “made the determination that it’s not in the public interest to pursue this as a criminal matter.”
While he found the victim credible, Chardo also pointed to gaps in the victim’s memory, as well as Ellis citing his 5th Amendment right to not self-incriminate, which created an incomplete narrative of the incident.
“We have bits and pieces of what happened,” Chardo said.
In an emailed statement, Erik Anderson, an attorney representing Ellis with the law firm Myers, Brier & Kelly, said the outcome is “proper and just.”
“It has always been our position that a careful and thorough investigation by the Dauphin County District Attorney’s Office would lead to the very conclusion recommended by the grand jury and adopted by the District Attorney today — that Mr. Ellis not be charged with any criminal offense,” Anderson said.
What the grand jury found
According to the grand jury report, the woman was a House staffer when the 2015 incident occurred. Ellis had previously focused on her after work events, making aggressive advances that she rebuffed, the report said.
Then, in autumn 2015, the staffer went out for a drink with a friend, a lobbyist who planned to attend a fundraiser later that night at a different bar.
The lobbyist left, and the woman remembers having one additional drink before waking up in Ellis’ bed, the report states.
She described feeling like “her body had been hit by a car” after waking up, according to the report. The woman asked Ellis what had happen, and Ellis replied that she had been drunk and that they had had sex.
The woman passed out again, and when she woke up, Ellis asked her to leave, the report states. She kissed Ellis before she left because “she felt he would not let her leave unless she acquiesced to his advance.”
The woman went to the hospital two days later and told a doctor she did not consent to intercourse. She at the time declined to have the matter referred to law enforcement and was not examined by a sexual assault nurse examiner.
Watching the #MeToo movement grow in 2017 helped convince the woman to come forward with her claim. State Victim Advocate Jennifer Storm, who is working with the woman, said the woman felt compelled to come forward to “protect other women” after Ellis began angling for a leadership position.
“While the grand jury is not recommending charges in this case, it is very clear that it is not because she isn’t telling the truth,” Storm said.
Early attempts in 2018 to inform House leadership — then under former House Majority Leader Dave Reed, R-Indiana — were rebuffed as being criminal in nature and beyond the House’s reach. In December 2018, the accuser reported the assault to Chardo’s office, according to the grand jury report.
However, after House rules changed under current Majority Leader Bryan Cutler, R-Lancaster, the woman filed a formal complaint with the lower chamber’s Ethics Committee, according to Storm. That complaint was also passed off to Chardo’s office.
A “recurring concern” identified in the grand jury report “was the complexity of making reports of alleged sexual assault or sexual harassment in the General Assembly.”
An independent investigative office?
The grand jury recommended the General Assembly authorize a central investigative office to look into “misconduct in any way … connected with or related to [a lawmaker’s] official duties,” from sexual harassment to discrimination to financial crimes.
The office’s head would have a six-year term, could only be removed for cause with a majority vote in both chambers, and would have subpoena power.
Chardo said such an office would provide individuals within the General Assembly with a place to confidentially make allegations against powerful figures without fear of retribution.
Currently, each chamber has its own ethics committee — made up of elected officials and staffed with legislative employees — charged with receiving and investigating complaints against other lawmakers or employees.
Spokespeople for both the House and Senate Republican majorities pushed back on the notion that a new office was needed to investigate ethics complaints.
A statement from House Republican leadership pointed to the addition of language governing sexual harassment to chamber rules, saying that the caucus has “made significant improvements in recent years to address how accusations are investigated and continue[s] to stand behind our actions to do everything in our power to eliminate sexual harassment and abuse.”
“The House Republican Caucus has not wavered in its zero-tolerance policy toward any instance of sexual abuse or harassment,” the statement reads. “As is shown by this example, we took swift action against our former member and fully cooperated with any request from law enforcement.”
Jenn Kocher, spokesperson for Senate Majority Leader Jake Corman, R-Centre, said in an email that the caucus regularly holds trainings to teach employees about the policy. She added that the caucus has “never had anyone who has filed or considered filing a claim say that they didn’t understand it.”
“One important thing to keep in mind is that just because incidents did not make front page news, it does not mean that we haven’t handled several of these cases in the past,” Kocher said in an email. “Rather it points to the concept that individuals who have filed a claim are satisfied that their complaints were handled appropriately.”
What the General Assembly may do next
Ellis’ isn’t the only #MeToo case to shake the House.
In 2018, Rep. Tarah Toohil, R-Luzerne, said former Rep. Nick Miccarelli, R-Delaware, physically and emotionally abused her while they were in a consensual relationship years earlier, then stalked and harassed her after the relationship ended.
Toohil obtained a protection from abuse order from a Luzerne County judge in March 2018 and filed a complaint with the House, accusing Miccarelli of violating its workplace harassment policy.
Another woman accused Miccarelli of rape, and filed a criminal complaint that she later dropped. An investigation by House Republicans deemed both women’s complaints credible.
Miccarelli resisted calls to resign, but declined to run for re-election. He finished serving his fifth term with his pension and benefits package intact, and is now executive director of the nonprofit Community Transit.
The Philadelphia Inquirer also reported in late 2017 that House Democrats paid $248,000 to settle a sexual harassment case against Rep. Tom Caltagirone, D-Berks, the chamber’s longest serving lawmaker. Caltagirone is still in office.
Chardo and the grand jury are not alone in critiquing the Legislature’s current investigation system.
Earlier this year, Sen. Lisa Baker, R-Luzerne, said the current committees “are not sufficient to assure the public that these situations are being properly investigated,” and proposed the creation of a legislative review board, modeled after the state’s judicial conduct review board.
Rep. Leanne Krueger, D-Delaware, has also been pushing a bill to create an independent agency just to investigate sexual misconduct.
“I’m not sure how many other points of evidence we need for the Legislature to decide to act,” she told the Capital-Star.
Outside of a wholesale change to internal enforcement from a new office, Monday’s grand jury report also suggested that both chambers provide accusers with more confidentiality, such as letting them decide if a complaint is forwarded to law enforcement.
House Ethics Committee Chair Rep. Frank Farry, R-Bucks, could not comment on Ellis, saying he cannot confirm or deny any complaint that has been before the committee.
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