Tuesday, July 10, 2018

Sex Harassment Not Willful Misconduct In Iowa

A plurality of the Iowa Supreme Court reversed an order removing a county attorney from office

An attorney removed from his elected position as Van Buren County Attorney challenges the district court order for his removal. Chapter 66 of the Iowa Code authorizes a district court to remove “[a]ny appointive or elective officer, except such as may be removed only by impeachment, holding any public office in the state or in any division or municipality thereof” in certain circumstances. Iowa Code § 66.1A (2015). We must now decide whether an elected county attorney was properly removed under this statute for sexual harassment. For the reasons set forth herein, we conclude that the conduct of the county attorney, while deserving the disapproval it received from the district court, did not rise to the level of misconduct that would warrant the “drastic” and “penal” remedy of a court order removing an elected official from office.

The attorney was admitted in 2013. His election was effective on January 1, 2015.

His office assistant was a young woman named Jasmin Wallingford. 

Virginia Barchman was hired as a part-time assistant county attorney

Barchman obtained permission from the Van Buren County Board of Supervisors (Board) to work in a different office space in the Van Buren County courthouse due to issues she had with the noise in Watkins’s office and Watkins himself. She labeled this new workspace an “Abe-free zone.” Watkins soon began seeking job applications for an assistant county attorney, which Barchman interpreted to mean Watkins was looking to replace her...

On one occasion, Barchman saw what she believed to be Watkins appearing downstairs in his underwear. She made her objections to his behavior clear to Watkins, and there is no indication that this ever happened again in her presence. Further, Watkins used a crude sexual term as a nickname for a particular female attorney in Barchman’s presence. She told Watkins that this was offensive to her, and she never heard him use the expression again.

Watkins also asked Wallingford if her “vagina was still broke” on one occasion when Barchman was present. Moreover, Barchman saw a photograph of Watkins’s wife while she was pregnant, nude, and covered in blue paint on Watkins’s computer screen by accident when she went to his office to discuss something with him.

He was alleged to have engaged in willful misconduct

In addition to the aforementioned complaints from Wallingford and Barchman, the district court also took into account testimony from Tayt Waibel and Kauffman. The district court found the testimony of Waibel, who had worked for Watkins in his private law office, to be truthful. Her testimony recounted inappropriate sexually charged remarks made by Watkins. One of those comments was directed at Waibel personally and occurred on a weekend after Watkins was served with removal papers. After making the inappropriate statement, Watkins acknowledged, “This is probably why I’m in trouble for sexual harassment.” Moreover, the district court relied on testimony from Kauffman, who testified that Watkins liked to talk about sex, frequently offered to show him naked pictures of his wife, and once commented on the breasts of a courthouse employee.

The district court had ordered removal from office.

Wrongly, according to the court

In determining that Watkins committed willful misconduct or maladministration in office through his charged acts, the district court applied the standard for sexual harassment set forth in the Iowa Rules of Professional Conduct rather than the employment law standard for a hostile-work-environment sexual-harassment claim... An additional remedy exists within the attorney disciplinary system for any ethical violations that Watkins committed.

And

 The district court ruling in this case did not actually find the State proved the elements of a hostile-work-environment sexual-harassment claim.

His unfitness to serve was not established

To be clear, sexual harassment in any form is never acceptable or appropriate behavior. It is important that our court system, like all institutions, protect and support victims of sexual harassment. Watkins’s actions and statements were disgraceful, disrespectful, and inappropriate. Certainly, we do not condone such behavior. As morally reprehensible as we find Watkins’s behavior, this is not the standard by which we need to analyze whether the State has met its high burden to establish whether Watkins committed willful misconduct or maladministration in office by creating a sexually hostile work environment. We are a court of law, not a court of public opinion. We now analyze the facts of this case and apply the legal standards applicable to removal actions.

Determining whether a public official engaged in willful misconduct or maladministration in office is necessarily fact specific. As already noted, Watkins’s conduct did not amount to a criminal violation and the claim that Watkins committed sexual harassment has not been adjudicated...

While not excusing Watkins’s egregious conduct, the record does not establish that Watkins was guilty of grave misconduct, demonstrated flagrant incompetence, or was otherwise unfit to perform his duties as county attorney.

Complainant Wallingford 

By all accounts, the Law Office of Abraham Watkins/the county attorney’s office was an unstructured environment. Wallingford got along well with Watkins and considered herself a close friend to Renee. The individuals in the office teased and played pranks on each other. Watkins, Renee, and Wallingford discussed intimate details of their lives with one another. They socialized with one another on a frequent basis, including at least one or two overnight trips that included the Watkinses’ children.

The events that led to Wallingford’s resignation began on August 5. It was on that date that Watkins and Renee were in a major verbal fight. Renee decided to remove herself and the children from the home and visit her family out of state. Alcohol abuse by Watkins was a factor in Renee’s decision to leave. By this time, Wallingford was fed up with the tension and arguing in the office by all concerned. But the tipping point for her was an insulting remark that Watkins made to her over the weekend about her father. By Monday evening, Wallingford decided to resign from her position and contacted Kauffman and Barchman regarding her decision. Kauffman advised her at that time to write down all of her complaints about Watkins, which she did the following week.

Of the fifty-plus complaints that Wallingford listed about Watkins, approximately eleven were the incidents of sexual harassment that we have discussed..

After the obligatory tut-tut

In conclusion, based upon our de novo review of the entire record, the evidence did not establish willful misconduct or maladministration in office within the meaning of section 66.1A(2). The State’s evidence was insufficient to meet the high bar necessary for the removal of Watkins from his elected office. Consequently, we reverse the judgment of the district court, vacate the district court’s order removing Watkins from the office of Van Buren County Attorney, and remand the case for entry of an order dismissing the petition for removal and reinstating Watkins as Van Buren County Attorney.

Justice Appel specially concurred.

Yet I view this as a close case. I do not agree with all of Justice Zager’s gloss on the facts. In particular, I agree with much of what Chief Justice Cady says about the use of sexual humor to objectify and demean women. I part company with Chief Justice Cady primarily as a result of my view of the extraordinarily demanding standard for removal as articulated in our caselaw and its application to the facts of this case. On the narrow but critical legal issue of the appropriate standard for removal, I am closer to Justice Zager.

Because of my differences with both major opinions in this case, I do not join either of them. In the end, however, I conclude that Watkins’s behavior approaches, but does not cross, the heroic and stringent penal or quasi-criminal standard for removal articulated in our historic caselaw.

I want to make clear that today should not be regarded as a vindication for Watkins. By the narrowest of margins, he has escaped heroic, quasi-penal judicial removal from his office of county attorney. In short, this case should be a model for county attorneys of how not to conduct themselves in office.

Chief Justice Cady dissented

I respectfully dissent. Sexual harassment will not end until it is seen as serious enough to end.

He surveys the law of removal

In sum, since Iowa’s inception, our legislature has seen fit to supplement its election laws with corresponding measures to remove elected officials for certain types of misconduct. Contrary to the plurality’s premise that the judiciary may not “impos[e] standards of conduct on elected officials,” the legislature has always tasked the courts with removing officials whose conduct demonstrates their disqualification for office. Indeed, for the entirety of Iowa’s history, our legislature has instructed that elected officials assume their offices subject to a number of qualifications, including the condition they refrain from willful misconduct and maladministration in office.

Sexual harassment is willful misconduct

Sexual harassment was once a putative consequence of working while female. However, legislative enactments, private measures, and public discourse conclusively demonstrate that society has evolved. Sexual misconduct in the workplace, especially in a government workplace, is no longer tolerated. County employees, like all other employees, have a statutory and constitutional right to be free from discrimination. It is in the image of this clear, ubiquitous public interest that we ground our understanding of misconduct and maladministration in office. Yet, in the end, it is left to the courts to recognize sexual harassment and apply the law to remove it in all aspects of life.

The unvarnished facts

The unvarnished record reveals the depth of the abhorrent conduct at the center of this case. This conduct occurred in the presence of those who worked in the office of a public official and those who entered the office for business.

At trial, five people testified to observing Watkins in the office in his underwear on different occasions. These people not only included Jasmin Wallingford, the office legal assistant, but also two women who cleaned the office and a client and his wife who had stopped into the office one morning to pick up documents. The two women who cleaned the office were Amish and had once confronted Watkins about being uncomfortable with seeing him in his underwear in the office.

Wallingford, who was twenty-years-old, was the target of most of the conduct at issue. Watkins once showed Wallingford a video he had recorded of his wife squirting breastmilk in Wallingford’s car. On another occasion, he showed Wallingford a photograph of his wife’s vagina, as well as a photograph of his wife naked from the waist down. Watkins also kept naked photographs of his wife on his desk computer and would look at them during office hours. Virginia Barchman, the assistant county attorney, entered his office on one occasion to speak with him and observed one of the photographs on his computer screen.

Watkins inquired into Wallingford’s doctor appointments and asked her on three or four occasions if “her vagina was still broke.” Watkins told Wallingford, during work, that her “boobs [were] distracting him” and that she “should wear that shirt out” if she “ever went clubbing.” Watkins complained to Wallingford that his wife never wanted to have sex and that he “just wished that he had a wife that had sex with him all the time.” Watkins informed Wallingford that he kept naked pictures of former girlfriends on his phone and enjoyed looking at them. Watkins made a sexually driven reference about a floor cleaner called “Bona” in the presence of Wallingford and the young Amish women who cleaned the office.

Watkins also used sexually graphic and demeaning rhetoric in the workplace when discussing other women. On one occasion, after Watkins made an inappropriate comment at a birthday party, he told Wallingford the following Monday during work that he needed to see if this courthouse employee “wore a padded bra or if her boobs were really that big.” On another occasion, Watkins announced that a local female attorney with initials “T.Q.” should be referred to as “T. Queef,” which refers to a term that describes the emission of air from the vagina.

No joke

a lens that sees sexual comments or “jokes” not specifically directed at the employee herself as “insensitive” but tolerable trivializes the lived experiences of those who have been forced to withstand them. Indeed, a finding that Watkins’s comments “did not concern Wallingford herself” rests on a defunct and antiquated view of hostile work environments. Watkins was speaking about women. He was commenting on the bodies of women. He was objectifying and sexualizing women. Wallingford was required to endure a slew of degradations directed solely at women—a class of which she is a member...

The recognition and prohibition of sexual harassment is far from a recent revelation. It has long been understood that making unsolicited comments about the breasts of an employee is illegal and degrading. That showing a photograph of your naked wife and of her vagina to an employee is unlawful and demeaning. Today’s decision is intimately tied to a bygone era of law that shielded men who knew better, at the expense of their female employees, who were required to abandon their jobs or forced to accept harassment as a condition of employment.

While the plurality sees itself as upholding the integrity of elections, such a view weakens the checks and balances of government. The very purpose of the removal statute is to undo an election. Moreover, the opinion reveals the enduring vestiges of de jure discrimination. We were able to see with clarity in 1978 that no sheriff could possibly believe that brutalizing a prisoner is permissible, yet still cannot see with clarity today that no employer could possibly believe that creating a workplace atmosphere defined by degrading women is permissible. One view is no less serious than the other. Both are but different forms of willful misconduct. It is time for but one view to exist. The prolonged period of societal disinterest in the plight of working women must no longer obscure how inappropriate comments about one woman unquestionably concerns
all women in the workplace.

Watkins’s conduct was more than “inappropriate” and “disrespectful”—it was discriminatory. He deliberately subjected Wallingford to a barrage of indignities directed solely at women. An officer who intentionally discriminates on the basis of sex commits grave misconduct in office and is removable under section 661.A.

Justice Wiggins dissented 

I find no merit in the rationale the plurality uses to corroborate its conclusion that Watkins did not act with a bad or evil purpose. What I find particularly preposterous is the plurality’s unwarranted dilution of Watkins’s harassing behavior because the environment included joking, teasing, and sarcastic remarks. I am disinclined to believe any reasonable person in a similar situation would find Watkins’s harassment even remotely amusing. I am also disinclined to believe Watkins subjectively believed he meant no harm. The reasoning the plurality uses to discount Watkins’s misconduct sounds to me like the good-old-boy excuse. This excuse has absolutely no place in our law.

I also find no merit in the plurality’s emphasis on Wallingford’s close relationship with Watkins and his wife, as if to excuse Watkins’s behavior simply because he was like family to Wallingford. The plurality’s sympathetic portrayal of Watkins as a close family friend who meant no harm is misplaced. A familial-like relationship should discourage rather than foster a crude, demeaning, sexually charged work environment.

...We must stop making excuses. Enough is enough. Sexual harassment is a real problem affecting real individuals. Moreover, “[s]exual harassment perpetuates the interlocked structure by which women have been kept sexually in thrall to men and at the bottom of the labor market.” MacKinnon at 174.

The court consists of seven white males. 

The briefs and oral argument can be found here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/07/the-iowa-supreme-court-reversed-an-attorney-removed-from-his-elected-position-as-van-buren-county-attorney-challenges-the-di.html

| Permalink

Comments

Post a comment