Legislature keeps its own settlement payments quiet

SACRAMENTO — Every year, the Legislature passes one or more bills to approve payments for legal settlements made by the state. Each bill creates a public record, including amounts, litigant names, case numbers and court venues — all easily accessible to anyone with an internet connection.

Absent from the legislative record, however, are any mention of money appropriated to settle claims against the Legislature itself.

The rules committees in the Assembly and Senate can approve claims in private sessions, without creating any easily accessible public record.

The Legislature will release copies of settlement documents in response to an official request under the Legislative Open Records Act, but this generally requires that the person making the request have some prior knowledge about the settlement itself.

“With a public entity, you can always get it, but you have to know to get it,” said Leslie F. Levy, a partner with Levy Vinick Burrell Hyams LLP in Oakland.

This settlement process has been in the news in recent weeks as numerous allegations of sexual harassment have hit the Capitol.

According to a widely-publicized report put out last week, the Senate and Assembly have combined to pay out at least $1.9 million in sexual harassment and discrimination settlements in the past 25 years.

The information was compiled and released by Ryan Hughes, a former legislative staffer and the founder of Tuple Law in Los Angeles. Hughes compiled his information with a combination of open records act requests to the Senate and Assembly, as well as by finding older media reports written by journalists who filed their own requests in past years.

According to the Assembly Rules Committee, it provided Hughes with settlement documents going back to 2008. But the committee’s chief administrative office said it doesn’t keep records older than that.

By contrast, anyone can visit the state’s main legislative website, leginfo.legislature.ca.gov, and type “Kamala Harris” in a search box. The very first thing that pops up is SB 535, a bill passed this year that appropriates $522,611 to pay settlements in a pair of federal lawsuits against Harris’ office when she was attorney general.

The relative secrecy of claims against the Legislature has been a major bone of contention for the women behind the #WeSaidEnough campaign fighting sexual harassment in the Capitol.

With Levy at her side, one of those women, lobbyist Pamela Lopez, named Assemblyman Matt Dababneh, D-Encino, on Monday morning as the man she said assaulted her in January 2016. Dababneh has denied the allegation.

Lopez has repeatedly spoken out about how settlements are written, which she said usually do not include the names of those accused of wrongdoing.

“If the Legislature has released records where they are not protecting victims but they are protecting the identities of perpetrators, I take that as one more piece of evidence for my feeling that I would not be protected if I stepped forward,” Lopez told reporters at the press conference.

Surprisingly, among several attorneys and high-level legislative staffers questioned, no one appeared to have a full picture of how and why the Legislature determines which settlements are made public.

For instance, both legislative houses are employers, limiting the amount they can publicly disclose about staff. Speaking on background, one attorney noted state agencies often approve settlements in closed sessions, though at least some of these settlements later appear in the legislative record.

Legislative settlements are paid out of money already appropriated for the budget of each house. Legislators cannot simply vote themselves more money. They can vote to pay an agency’s settlement out of the state’s General Fund, which protects agencies from having their annual budgets blown by one manager behaving badly.

Many people didn’t seem to know if all non-legislative settlements show up in bill language. Some said they believed there was a minimum amount required to trigger the need for a bill. Others said that some settlements, such as pre-litigation settlements, may be excluded.

The lack of a legislative record is part of a system that makes it difficult, though not impossible, to find out what claims the Legislature has paid out, Levy said. Agreements themselves usually silence plaintiffs and attorneys.

“Technically, under the sunshine laws the public has a right to know,” Levy said. “The way it works in practice is that the public entity attempts to gag the plaintiff.”

Hughes’ report noted the frequent use of no-reemployemnt clauses that bar the person accepting settlement money from working in the Legislature again.

A spokesperson for Speaker Anthony Rendon, D-Lakewood, said the Assembly has stopped using such clauses since he became the body’s leader.

The Daily Journal acquired the 2009 settlement agreement between the Senate and an outgoing employee who claimed harassment against a high level staffer. In return for $70,000, the woman agreed not to sue or “seek or accept future employment” with the Senate.

The document did not include a record of allegations, and stated an official investigation of the incident was not subject to the open records act.

“I’ve been stunned by how small the settlements are that we’ve heard of,” Levy said.

A search of several of the cases identified by Hughes revealed something else. Many women involved appear to have stopped working in politics or government at all; several left the Sacramento area.

Attempts to get on-the-record statements from each house were not successful as of press time.