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As Hill inquiry expands, questions about investigation, ethical duty persist

July 11, 2018
hill-curtis-mug Hill

As allegations of “inappropriate touching” by Indiana Attorney General Curtis Hill came to light last week, questions began to swirl. Who made the allegations? Has this happened before? What happened after the accusations were made?

The answers to some of those questions came to light when a confidential memorandum prepared by Taft Stettinius & Hollister LLP was leaked to the media and widely reported. The eight-page memo details Indiana Rep. Mara Candelaria Reardon’s May account of Hill sliding his hands down her back, underneath her clothes and grabbing her buttocks twice — once after being told to “back off.” Reardon publicly confirmed the allegations Friday, though she said she recoiled before Hill could allegedly grope her a second time. Based on that discrepancy, Hill said the allegations that form the basis of the calls for his resignation are “materially inaccurate,” making those calls unwarranted.

candelaria-reardon-mara-mug Reardon

The memo also provides the accounts of five female legislative employees who said a “very intoxicated” Hill engaged in multiple instances of inappropriate conduct, including rubbing one employee’s back, hugging one employee to him and telling a group to “show a little skin.” Gabrielle McLemore, communications director for the Senate Democrats, has said she made the back-rubbing allegations.

However, the memorandum prepared by Taft — which was hired to review the process legislative leaders followed when responding to the allegations — concludes that even if the allegations were true, they would not rise to the actionable level of creating a hostile work environment. Regardless, Republican Gov. Eric Holcomb and legislative leaders from both parties called for Hill’s resignation, while Indiana’s inspector general has agreed to open an investigation into the allegations. Hill has repeatedly denied the allegations and has demanded a “proper” investigation that will afford him the due process he said he has been denied.

Despite those responses, the memo also concluded the attorneys, including several lawmakers, who investigated the complaints did not have a duty to report Hill’s alleged misconduct to the Indiana Supreme Court Disciplinary Commission. But that conclusion doesn’t sit well with some sexual harassment and legal ethics experts, who say Hill’s alleged conduct could be grounds for criminal charges.

As Hill vows to stay in office, legal ethics experts are grappling with a complicated question: what is the appropriate response when the state’s top attorney is accused of harassing, possibly criminal, conduct?

Harassment and battery

The bulk of the confidential Taft memo focuses on whether Hill’s alleged actions could create liability for the legislative branch. The alleged harassment occurred when lawmakers and staffers were gathered to celebrate the end of the 2018 legislative session.

Considering the alleged misconduct did not occur in the workplace, was an isolated incident, and was committed by an individual who was not the victims’ employer, Taft determined there is likely no liability under Title VII of the Civil Rights Act. But Jennifer Drobac, an Indiana University Robert H. McKinney School of Law professor and sexual harassment law expert, said there is reason to doubt that conclusion.

For example, the alleged misconduct occurred during a General Assembly sine die party at AJ’s Lounge, a bar on the southside of Indianapolis. If that party occurs annually and if AJ’s Lounge is a “common watering hole” for lawmakers and staffers, then Drobac said the lounge could be considered an extension of the workplace.

But Rep. Linda Lawson, a former sex crimes police officer, said the allegations go beyond workplace sexual harassment. Based on her experience, Lawson said Hill’s conduct, if true, would constitute sexual battery.

To prove that charge, the Hammond Democrat said intent would have to be proven. Considering Hill is alleged to have tried to grope Reardon a second time after being told to stop, Lawson said it seems like evidence of intent could be present in this case.

What’s the protocol?

If she had been assigned to this case, Lawson said her first course of action would have been to open a sexual battery investigation that would have included a police report and witness interviews that could have been used to give the victims their day in court.

“The problem is that there is no procedure, no protocol, no protection for victims at the Statehouse,” Lawson said.

Lawmakers acknowledged that lack of protocol during this year’s session by passing House Enrolled Act 1309. That bill mandates that legislators complete one hour of sexual harassment prevention instruction each year.

HEA 1309 also requires the Legislative Council’s Personnel Subcommittee to “prepare recommended sexual harassment prevention policies to govern the conduct of members of the general assembly.” Those policies must include “a procedure for investigating claims of sexual harassment against members of the general assembly.” A spokeswoman for House Speaker Brian Bosma, who leads the subcommittee, did not respond to a request for information about whether the subcommittee has begun developing the recommendations, which must be approved by Nov. 20.

Leaders from the judicial and executive branches also pledged this year to strengthen their sexual harassment prevention training, but such talk and legislation have no teeth if Hoosiers have nowhere to turn when they are victimized in the Statehouse, Lawson said.

Investigation questions

Because of that lack of protocol, the legislative investigation into the groping allegations has come under fire.

Drobac, for example, wondered whether any of the people who interviewed accusers and witnesses — including Bosma, Long, Senate Minority Leader Tim Lanane, House Minority Leader Terry Goodin, Rep. Matthew Lehman, Sen. Ryan Mishler, legislative counsel and high-ranking staffers — have been trained to respond to sexual misconduct allegations. She also questioned the goals of the investigation, saying a fact-finding mission should have been conducted.

The memorandum details six interviews lawmakers conducted in light of the allegations, but Lawson said there are law enforcement methods that could have been used to find additional witnesses. However, as of IL deadline Monday, Indiana State Police had not received a report about the allegations, and a spokeswoman for Marion County Prosecutor Terry Curry said no investigation had been presented to his office.

The details provided in the memo do not shed light on whether additional witness interviews were conducted, Drobac said, but she noted the memo is not the original report that lawmakers compiled. Thus, the Taft memo may not have listed every facet of the initial investigation, or may have added details, making it difficult to know what really went on.

Also troubling to Drobac was the fact that the memo does not make any reference to Hill being involved in the review of the groping allegations. Hill has said he was never contacted by an investigator, but instead learned of the then-anonymous allegations minutes before boarding a flight on June 29.

In a joint statement, Bosma and Long denied conducting an “investigation” into Reardon’s allegations, but instead said the legislative leaders acted “to protect legislative employees.” The statement also said the employee complaints were shared with Hill during a June 29 conference call and at a follow-up, in-person meeting on July 2.

“I’m shocked, because any thorough investigation would have included comment and testimony from the accused,” Drobac said. Hill agreed, saying Monday that during his time as prosecutor he fought to protect the rights of victims and the accused.

Ethical implications

From a legal perspective, several of the lawmakers’ ethical duties were implicated when they began looking into misconduct allegations against a fellow attorney. In addition to the Taft lawyers who worked on the investigation, Bosma, Long and Lanane are licensed attorneys who worked alongside legislative counsel.

But according to Taft — which referred all questions about the investigation to the Long and Bosma’s offices — Indiana Rule of Professional Conduct 8.3 did not require those attorneys to file a complaint against Hill with the Disciplinary Commission because they did not actually “know” of his misconduct. An Indianapolis attorney and legal ethics expert, who asked to remain anonymous, said the Preamble to the Rules defines “knowing” as having “actual knowledge of the fact in question.”

The Preamble also says knowledge may be inferred from circumstances, so if one of the attorneys reasonably believed Hill was behaving inappropriately, then, technically, they would have a duty to report him, the ethics expert said. But the expert also said the rule cannot be taken literally to mean that every suspected act of attorney misconduct must be reported.

Similarly, Drobac pointed to a comment to Rule 8.3 that says the reporting obligation is limited “to those offenses that a self-regulating profession must vigorously endeavor to prevent.” However, Indianapolis ethics attorney Jon Pactor said because the allegations are now public, the question of whether any of the attorneys had a duty to report is moot. He also said the Disciplinary Commission could use the public information to begin its own investigation.

A substantial question?

Aside from finding no obligation to report Hill’s alleged misconduct, the memo also concluded such conduct committed on an isolated basis would not create “a substantial question as to his honesty, trustworthiness or fitness as a lawyer in other respects,” referencing Rule 8.3 Butn pointing again to the Preamble, the expert said the Rules require lawyers to conform to the law in both their professional and personal affairs. From the expert’s perspective, a disciplinary investigation should be opened.

Similarly, Drobac said Hill is an elected official sworn to uphold the laws in the state, so serious misconduct that could be a felony should likely be an ethical violation. And looking to the investigation as a whole, the professor said “the powers that be failed us 100 percent.”

While Hill has agreed with criticims of the legislative investigation, he has also maintained that the allegations are false and has vowed to try to restore his reputation.

“A week ago today, I had a name,” he said Monday. “I want my name back.”•

 

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