Can the Pa. Legislature be trusted to investigate its own #MeToo allegations?

A fresh round sexual assault allegations against two Pennsylvania legislators has reignited an old debate within the Capitol.

The questions at hand: Who should investigate complaints against lawmakers, and how should they do it?

The Philadelphia Inquirer reported last month that the Dauphin County District Attorney’s office is investigating a rape allegation against Rep. Brian Ellis, R-Butler.

The same day, PennLive reported that Senate Democrats hired outside counsel to investigate a new sexual assault allegation against Sen. Daylin Leach, D-Montgomery

Media reports suggested that each members’ colleagues knew about the allegations well before they became public.

That fact, combined with the Senate Democrats’ choice to hire outside counsel to investigate one of its members, has rekindled #MeToo-era questions about transparency and conflicts of interests in sexual misconduct cases.

Since the nationwide #MeToo movement kicked off in late 2017, allegations of workplace harassment and sexual assault have dogged state House and Senate members from both political parties.

But Pennsylvania lawmakers adjourned the 2017-2018 legislative session without taking any action to bolster workplace protections. They also failed to create a single standard for handling in-house misconduct complaints.

As a result, some lawmakers and advocates say the General Assembly’s tools to investigate impropriety remain woefully insufficient.

“The current system is byzantine,” Carol Tracy, the executive director of the Women’s Law Project, said. “It’s not transparent, and there are four different processes across two parties and two chambers.”

Until 2019, Democrats and Republicans in the House and the Senate all had separate processes for investigating sexual misconduct allegations against their members.

That changed last year, when the House streamlined its internal rules to allow its Ethics Committee to investigate sexual harassment complaints against members of both parties.

The new policy came in the wake of sexual misconduct allegations last year against former Rep. Nick Miccarelli, R-Delaware, and current Rep. Thomas Caltagirone, D-Berks.

Now, any sexual misconduct complaint against a House member is referred to the ethics panel, which investigates it as they would any other alleged ethics violation. There is no requirement that the investigation or its findings be made public.

“I think it’s a very clear process and open process,” said Rep. Frank Farry, the Bucks County Republican who chairs the ethics panel.

Farry said just setting a policy means that lawmakers now “know what the rules are,” which will formalize the process to look into member’s alleged harassment.

But advocates — and even some lawmakers — say it’s not enough.

Tracy said the House procedure does not give complainants enough voice in the investigation. It also fails to apply the same investigative standards across all of the General Assembly.

“It’s simply an inadequate response to sexual harassment in the legislature,” Tracy said. “And right now it’s only related to the House and not the Senate. So are we going to be back to having different processes … which seems to me to be unnecessary.”

The House policy still allows lawmakers to investigate their own colleagues and party members, which can raise doubts about transparency and accountability.

That’s why some female lawmakers are calling for third-party investigations to be the norm across all of the General Assembly.

“Many of our constituents are highly dissatisfied with the manner in which complaints have been handled,” state Sen. Lisa Baker, R-Luzerne, said in a statement last week. “The House and Senate Ethics committees as currently constituted are not sufficient to assure the public that these situations are being properly investigated. In this era of heightened disclosure and rising demands for accountability, we can no longer justify conducting reviews from the inside.”

Along with fellow Luzerne County Republican, Rep. Tarah Toohil, Baker last week rolled out a proposal to create a legislative review board, modeled after the state’s judicial conduct review board. It would probe accusations of harassment and misconduct, as well as public corruption. 

In a memo to their colleagues, Baker and Toohil said the new board would increase public trust in the fraught investigation process.

It would also apply the same investigative standards to all members of the General Assembly.

“This would add a level of due process in sexual harassment cases for victims and the accused as a complaint would have to meet a threshold of credibility before action was taken by the chamber,” Toohil said in an email last week.

In the review board Baker and Toohil are proposing, legislators, third-party experts and lay people  would investigate misconduct complaints and offer a determination of their credibility.

If the board found an allegation credible, it would launch an investigation. Once the board completes its investigation, it would send its findings back to the chambers to render any discipline.

Last year, Toohil said Rep. Nick Miccarelli physically and emotionally abused her while they were in a consensual relationship years earlier. She obtained a protection from abuse order from a Luzerne County judge 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. But 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.

Toohil and Baker aren’t alone in seeking change to the misconduct review process. Rep. Leanne Krueger, D-Delaware, said last week that she is “working with a bipartisan group of legislators to introduce legislation that will provide accountability for legislators who engage in sexual harassment.”

Krueger introduced legislation last session to create an independent office to investigate allegations of harassment by legislators.

The office would be headed by an independent, third-party executive picked by the Legislature’s four floor leaders. Its investigations would guarantee accusers privacy and publish a final public report.

Under Kruger’s proposal, lawmakers wouldn’t be able to participate in investigations targeting their colleagues. The office would employ outside counsel instead.

Other lawmakers are introducing legislation to protect victims in sexual misconduct cases more generally. Lawmakers announced plans last week to reintroduce a bill that would eliminate the statute of limitations in all sexual assault cases.

Sen. Judy Schwank, D-Berks, also plans to re-introduce legislation outlawing the use of nondisclosure agreements, her office confirmed.

Such agreements are common in suits that settle out of court, and require accusers to remain silent after a case is settled, usually in exchange for monetary damages.