The AG Mess: ModernEsq's Thoughts Supplemented

Modern Esquire posted a must-read about the brewing scandal coming out of the office of Attorney General Marc Dann. If you haven't heard, a high-level supervisor and long term FOM, Anthony Guitierrez has been accused by two female staffers of sexual harassment. Part of the scandalmongering includes cries of cover up based on a) the fact that in-house EEO officers attempted to settle the matter before they filed their complaint and b) the in-house investigation is being handled by Assistant Attorneys General whom Dann had hired.

In my past lawyerly life your humble blogger has both litigated sexual harassment cases and prosecuted sex crimes. Like Modern, I've been troubled by some misstatements in the commentary about the case, but haven't had the time to post about it until now. Modern's post provides much of the necessary background which this post will supplement somewhat.

As Modern notes, the cover up controversy misunderstands the nature of the current legal controversy. To take an additional step back from Modern's post, understand that sexual harassment by itself is not a crime. It is, rather, a form of employment discrimination for which an employee can seek compensation under statute. So it is "against the law" in the sense that a statute creates the cause of action, but there is no crime defined as sexual harassment.

That's the backdrop for Modern's that the statutory scheme encourages employers to resolve cases of alleged harassment before complaints are filed. The EEO officers who tried to settle with the complainants may well have been motivated more by preventing embarrassment to the office than a sense of justice, but that's of no moment. The bottom line remains -- attempting to resolve a civil action prior to court proceedings isn't just OK, it's encouraged.

While sexual harassment isn't the name of a crime, there are crimes that might constitute sexual harassment. The most troubling allegation in the complaint is that one of the staffers lay down after drinking heavily with Gutierrez and awoke to find Gutierrez lying next to her in his underwear and three of the buttons on her pants undone. While troubling, it would be hard to prosecute a crime based on these allegations.

The nearest offense would be gross sexual imposition which is touch the errogenous zones of a helpless person for the purpose of sexual gratification. Two problems arise. First, the evidence at this point appears to be the word of that staffer. Without more, it's hard to prove a case beyond a reasonable doubt based on that evidence alone. (Please don't afflict me with scoldings about how I should believe women. It's not about that, it's about getting twelve randomly selected jurors to unanimously agree that her testimony proves the case beyond a reasonable doubt.)

The second problem is that the allegations by itself probably isn't enough to establish the crime. We know Gutierrez was in his underwear and we know her pants were unbuttoned. We have no evidence of actual touching. We can infer that probably the nearly naked guy touched her, but probably isn't beyond a reasonable doubt.

All of which is to say that the fact that a maybe crime is involved doesn't much change the original point that attempting to settle the case isn't an illegal cover up.

The other cover up complaint comes from the fact that the internal investigation is being done by Dann appointees. To flesh out Modern's point a little, let's consider what the internal investigation is all about. An internal EEO office does two things -- they police the office for potential violations of employment discrimination laws and, in the event of a complaint, to help compile the information that the agency uses to defend itself. The bottom line for the EEO office is keeping the agency out of trouble. The exact mix of the two somewhat contradictory tasks is a matter of internal policy.

But here's the main thing. The internal investigation isn't the definitive investigation. What's happening now is the beginning of a (likely protracted) adversarial process. Employment disco laws are a little different in that a plaintiff has to start in an administrative agency. That's what the Ohio Civil Rights Commission is. The OCRC hearing officer will take evidence from both sides and render a decision.

That is, if the OCRC process is permitted to go to conclusion. The statutes also allow a plaintiff to request permission to sue in court if the case isn't resolved in 90 days. That's what usually happens -- the plaintiff asks for a letter granting her the right to sue (cleverly called a Right to Sue letter) and goes to court. At that point the discovery rules kick in and, among other things, everyone at the condo that night give a deposition under oath. That ultimately is the real anxiety for Dann et al.

For now the questions about who wore PJs and when she wore them are a few months off. To get back to the cover-up talk, the bottom line is that the investigation in the AGs office won't be the bottom line.

Ultimately this will quite likely go badly for Dann and company, and will go badly for a long, painful time. But calling what has happened a cover up is a bit of a stretch.