Workplace (mis)conduct: Absence of evidence or evidence of absence?

When the California Legislature created the Workplace Conduct Unit in 2018, it was supposed to be the institutional answer to #MeToo -- a clean, independent mechanism to handle harassment, discrimination, retaliation and other internal misconduct complaints.

One piece of evidence may suggest the unit is working: The number of lawsuits by legislative staff against the Assembly, Senate and elected members has dropped off a cliff in the years since it was created.

But two prominent plaintiffs' lawyers are questioning whether the unit ever worked the way it was sold. They say the answer might be precisely the opposite: The unit is helping stop complaints, but not in a way that is helping staff who have been harassed or retaliated against.

Oakland attorney Micha Star Liberty has filed a California Public Records Act request seeking data the unit does not voluntarily disclose: how many investigations were opened, how many were closed without action, how many resulted in findings or settlements, whether repeat complaints exist, and how confidential reports are handled. This kind of data, she said, could help identify troubling patterns, such as a lawmaker who is a serial harasser, while still redacting the personal information of victims.

So far, she says, she has heard nothing back.

"It does not seem like it has been functioning the way it was supposedly supposed to," Liberty said.

The silence is part of her gripe. The unit publishes topline numbers of complaints filed and resolved each year. But it does not publish the kind of operational detail that would allow outsiders to assess whether it is meaningfully independent or largely procedural, at least according to critics. Lawmakers have said this is partly to protect the confidentiality of staff who file complaints.

The unit operates under the Office of Legislative Counsel. This is intended to separate it from the direct oversight of the Assembly and Senate leadership. The legislative counsel is sometimes thought of as a kind of law firm for the Legislature, though it is largely tasked with helping draft bill language and opining about whether proposed laws are constitutional.

The Workplace Conduct Unit (WCU) also resides in rented, privately owned office space outside the Capitol, in a separate location from the legislative counsel.

In an email, Legislative Counsel Cara L. Jenkins said her office cannot comment on records requests or "work performed by the WCU for the Legislature in the context of the attorney-client privilege."

Sacramento attorney Ognian Gavrilov says he does not believe the WCU is independent. His federal case on behalf of former Assembly communications aide Cynthia Moreno puts the unit itself at issue -- not for failing to investigate, but for allegedly being used as a tool.

Moreno, who was fired, accused Speaker Robert Rivas, D-Salinas, of retaliation, not sexual harassment.

Rivas has also repeatedly denied any wrongdoing. He has said in the past through a spokesperson that Moreno is trying to "force a payout" on a meritless claim.

But Moreno alleged the WCU was weaponized against her, a claim that goes directly to the unit's credibility.

Gavrilov's view is blunt: An investigative body overseen by legislative leadership is not meaningfully independent, particularly when leadership could be a party to the investigation.

"My personal perception of that unit is that it's under the control of the Assembly speaker," said Gavrilov.

"Mr. Gavrilov's personal perception has no basis in fact," responded Elizabeth Ashford, Rivas' campaign spokeswoman. "The WCU is an independent entity that's not overseen or managed by the Legislature. The WCU found that the plaintiff's repeated sexual commentary was intolerable conduct, and the Assembly's career chief administrative officer dismissed her. The speaker was recused."

Rivas' office shared comments made last year by Assembly Rules Chief Administrative Officer Lia Lopez calling Moreno's complaint "a total fabrication."

"The WCU is a body housed within the Office of Legislative Counsel and is therefore independent of the Assembly," Lopez said at the time.

The Assembly was hit with eight personnel lawsuits in Sacramento County Superior Court in the five years before the creation of the WCU. The Senate had five. Each has seen just a single case filed there in the years since -- including Moreno's complaint, originally filed in state court.

Rivas' office did not comment on the record about the decline in complaints.

But Liberty and Gavrilov say the trend may reflect deterrence and fear, not trust -- and that if the WCU is perceived internally as hostile, performative or leadership-controlled, it may be suppressing complaints rather than resolving them, something that could backfire in time.

For now, Liberty waits; "Nothing," she confirmed when asked on Thursday.

Gavrilov, meanwhile, will have a chance next month to ask a U.S. magistrate judge to remove a stay and allow Moreno's case to move forward.

Stay tuned.

"Lapdog" bites back

California Chief Justice Patricia Guerrero held her annual meeting with the state's legal press on Thursday. One question that comes up each year is the ongoing threat of violence toward judges across the nation.

Guerrero said the California courts "haven't received the same level of threats as the federal judiciary." But she took the opportunity to send a not-so-subtle message to one lawmaker that she is listening.

"Frankly, when you see comments from leaders in other branches of government ... calling the court a 'lapdog' versus a 'watchdog,' this coming from one of the members of the Legislature, isn't a good thing," Guerrero said.

Guerrero did not say which lawmaker. But the comment appears to be a reference to remarks the day before by Assembly Member Carl DeMaio, R-San Diego. Reacting to the California Supreme Court declining to hear the City of Huntington Beach's appeal following a lower court's rejection of its voter ID law, DeMaio said the ruling was the product of "liberal justices who are lapdogs, not watchdogs."

"I think people need to be better educated," Guerrero said.

DeMaio's office did not respond to a request for comment.