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Ethics panel poised to move quickly in Kihuen investigation

Humberto Sanchez
Humberto Sanchez
The U.S. Capitol.

With the House Ethics Committee under pressure to better address sexual harassment in the U.S. Capitol, the panel could move more quickly than usual in its investigation of Nevada Democrat Ruben Kihuen and possibly push to get him to resign.

“This is a unique situation, dealing with sexual harassment, so I suspect they may operate faster than normal,” said Craig Holman, a government affairs lobbyist with good-governance watchdog Public Citizen.

The committee, the only one with an equal number of Republican and Democratic members, 10 in total, and a nonpartisan staff, has wide latitude in investigating violations of ethics and official conduct, as well as determining punishment when it catches a violation. Depending on what the committee finds, Kihuen’s potential sanction spans the gamut, from dismissal of the investigation to expulsion.

Robert Walker, a lawyer with Wiley Rein LLP and one-time chief counsel and staff director for both the Senate and House ethics committees, agreed. “Given the increase in workload due to these matters, I think it will be difficult to do that, but I certainly think they will strive to respond more quickly,” he said.

When asked about speeding up the process Tuesday, committee Chairwoman Susan Brooks, a Republican from Indiana, said in a brief interview off the House floor, that “we certainly [are] and will continue to discuss ways that we can expedite matters.”

Her Democratic counterpart, ranking member Ted Deutch of Florida, said, “The committee always tries to move as expeditiously as possible because we know how important these matters are.”

On Thursday, the Committee announced that it had voted to form an investigative subcommittee charged with looking into whether Kihuen had "engaged in conduct that constitutes sexual harassment." Members to the committee will be named next week.

Ethics investigations have no time limit and can last from months to a year or more. But the issue of sexual impropriety on Capitol Hill has taken on extra significance as more members could face allegations.

Over the years, the committee has been seen as reluctant to investigate and discipline colleagues. But there is renewed scrutiny on the panel with high-profile cases of sexual harassment coming to light, including those of Kihuen, Texas Republican Blake Farenthold, Michigan Democrat John Conyers and Arizona Republican Trent Franks. Conyers and Franks resigned earlier in December.

“I would expect that the House Ethics Committee will negotiate a resignation from the congressman, if they conclude he’s guilty,” Holman added.

Kihuen announced over the weekend that he would not seek re-election, and has indicated that he intends to serve out the remainder of his two-year term, which expires at the beginning of 2019.

Walker said it was too soon to tell how the matter would be resolved, but noted resignation could be a possibility. “I think the committee is going to want to get some facts before it would want to begin any kind of process of a negotiated outcome,” Walker said, who added Kihuen could choose to resign at any time in the process and end the investigation. House Minority Leader Nancy Pelosi and other Democrats have called on him to step down.

Both Brooks and Deutch declined to speculate about any possible outcome in Kihuen’s case in order to not influence the process.

Kihuen has been accused of sexually harassing a campaign staffer in 2016, a lobbyist while a member of the Legislature and a woman who works at a Washington, D.C. firm that did business with his campaign. He denies any wrongdoing and welcomed the investigation as a way to clear his name.

Under House Ethics Committee rules, the chairman and the ranking member can initiate a preliminary investigation to consider any information in its possession indicating that a member or House employee committed a violation of the House Code of Official Conduct or any law, rule or regulation.

That is what it did last week, when it announced that it had “begun an investigation and will gather additional information regarding all allegations.”

The committee obviously believes it has jurisdiction over transgressions that occurred before he was a member of Congress, given that it has launched its probe. Walker expects the committee to spell out how and why they have oversight into his conduct before being sworn in. One possible justification is the first provision in the House Code of Official Conduct, which states that a member “shall behave at all times in a manner that shall reflect creditably on the House.”  

At some point, the committee may decide to empanel an investigative subcommittee, with subpoena power, that would prosecute the Kihuen matter. The committee typically announces when it has voted to empanel a subcommittee.  

During the process, a settlement can be reached at anytime, though Brooks said “it’s not always clear how they happen.” One party is the Office of House Employment Counsel, which represents members’ offices in negotiations. Another is House Office Of Compliance, which settles employment disputes.

In some cases of alleged sexual harassment by members, settlements have been paid with taxpayer dollars, virtually in secret due to confidentiality requirements of the settlements. Only recently has data about settlements, guided by the Office Of Compliance, begun to emerge. One such settlement involved Farenthold, who is accused of harassing a staffer and later firing her after she complained. He has pledged to repay the $84,000 in taxpayer funds used to settle the claim.

But using taxpayer funds to pay for settlements for members is expected to stop, according to Brooks, who is working on working with her colleagues and the House Administration Committee to make the process more responsive for victims, while maintaining due process for the accused.

“I don’t think there is an appetite by the American people to have taxpayer dollars used for settlements, particularly by members,” Brooks said, adding that it is more complicated when staff are accused of harassment. “The more difficult issue is, occasionally settlements might involve staff. And [in those cases] the level of member’s knowledge, and or what was the member’s role” may come into play.

On Tuesday, the House Administration Committee released data that a Treasury account overseen by the Office of Compliance paid out $115,000 to settle claims of sexual harassment between 2008 and 2012.

The $115,000 does not include funds paid from members’ office budgets that may have been used to settle claims. Last month, reports emerged that Conyers had settled, with his office funds, a wrongful dismissal claim by a staffer who alleged she has been fired after rejecting Conyers’ romantic advances.

Updated at 2:42 p.m. to include an announcement by the Committee on Ethics of the formation of an investigative subcommittee tasked with reviewing the allegations against Kihuen.


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