On Dec. 8, 1992, Rep. Cynthia Thielen wrote a letter to then-Speaker Joseph Souki criticizing the fact that the House’s proposed sexual harassment policy didn’t cover lobbyists, state employees or many others who weren’t lawmakers.

“This is a serious omission,” wrote Thielen, then serving in the Republican minority. “Members, employees and all persons who do business with the legislative body must be provided with a work environment that is fair and respectful. The proposed sexual harassment policy fails to provide such a nondiscriminatory environment.”

Two decades, six years and one month later, the House has unveiled a draft sexual harassment policy that explicitly covers members of the public who do business in the Capitol.

The move comes nearly a year after Souki, a Democrat, resigned after a State Ethics Commission investigation found he had sexually harassed multiple women during his tenure as speaker, including a former state department director.

“That was a wake-up call for the members,” House Speaker Scott Saiki said during a press conference Monday.

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The Ethics Commission’s investigation also exposed a glaring problem: the House’s policy, which hadn’t been changed for at least a decade, not only didn’t cover third parties but funneled all complaints through the speaker.

In other words, if the Speaker harassed you, he or she still had a say in your case.

Monday’s proposed policy gets rid of that conflict and incorporates many national best practices. It defines sexual harassment, workplace harassment and bullying. It explicitly covers members of the public who do business in the House. It prohibits retaliation, and lists options for disciplinary actions. The policy also provides alternatives for reporting bad behavior if the victim doesn’t want to go to the speaker.

The draft was created by a three-person volunteer working group Saiki appointed in May. The Democrat said he presented the proposal to members Monday morning and the House plans to vote on the policy later this month.

Alternatives, But No Appeals

There is one national best practice that the House decided not to incorporate: a process by which to appeal a decision.

Saiki explained that the House decided not to include an appeals process — even though it’s recommended by the National Conference of State Legislatures – because the new rules include multiple avenues for reporting misconduct. In addition to the speaker’s office, they include the Hawaii Civil Rights Commission and the Equal Employment Opportunity Commission.

Ronette M. Kawakami, associate dean for student services at the University of Hawaii Richardson School of Law, told Civil Beat that overall she thinks the proposed policy is terrific. But she also thinks the House should consider adding an internal appeals process for complainants who do not feel comfortable pursuing legal avenues.

Notably, the draft policy excludes the Hawaii State Ethics Commission, which rendered the Souki decision last year. Saiki doesn’t think the commission has jurisdiction over legislative personnel matters.

“For me, that is a glaring omission,” said Rachael Wong, the former director of the state Department of Human Services. She was among several women who filed ethics complaints against Souki and the only one to go public.

“If the State Ethics Commission had not been a viable option for me, I would have had nowhere to go,” she said in a phone interview Monday.

She waited until after she left government service to report Souki and believes she missed the deadlines for other avenues. She also did not want to choose an adversarial legal route.

The draft policy also maintains secrecy throughout the process, and “any breach of confidentiality shall be treated as misconduct subject to disciplinary action, unless done so in the course of an action required or provided for by law.”

Cory Lum/Civil Beat

That means a legislator or staff member who files a complaint regarding sexual harassment in the House would be disciplined if they speak publicly about their experience.

Saiki said Monday that the confidentiality provision would not be a formal non-disclosure agreement, simply a request. Still, parties would be expected to maintain confidentiality even after investigations conclude and discipline is rendered.

At Monday’s press conference, Saiki didn’t know how many sexual harassment complaints had been filed over the past couple of years, and said he wasn’t sure if he could release aggregate statistics about the number of sexual harassment complaints and their results.

Secrecy And Training

For Wong, mandated secrecy is another red flag.

“This is putting a gag on the individuals who have put everything on the line to come forward,” she said, adding that imposed silence perpetuates bad behavior and reinforces levels of power.

At Monday’s press conference, Saiki said confidentiality is typical in the private sector. But Wong believes that the Legislature is different.

“We hold our elected officials to higher standards,” she said. “We need more from a legislative body.”

Wong also wonders why the House didn’t seek broader input when drafting these rules. Saiki said at the press conference that he wanted to prioritize staff input.

“I feel that the concerns that were raised by employees probably also apply to third parties,” he said.

That’s not the case when it comes to Wong. She said the version released Monday is a great first step that shows lawmakers are taking workplace harassment issues seriously.

But she sees ambiguity in some wording — “Would I have been covered by this? It’s just not clear,” she said, noting that it’s unclear whether a department director would fall under the umbrella of members of the public who do business at the Capitol. And she questions why complaints are limited to people who are victims of harassment, not observers of it.

Cory Lum/CIvil Beat

Thielen, who is now 85 and still serving as a Republican representative, also would have liked to weigh in earlier. She is happy the new policy covers third parties but is still concerned about how staff members who are receiving complaints will handle them.

Last April, Thielen says she observed a male legislator inappropriately touch a female representative. She wasn’t pleased with her experience trying to report the matter to the speaker’s office.

“I was treated as an annoyance,” she said. “That’s not the way something like this should be dealt with … I think it’s more than the sexual harassment policy that they’re putting together, it’s more how are you going to implement that so that a person doesn’t feel so turned off that they just walk out and either don’t do anything or end up maybe going through a court system?”

The House’s permanent staff went through training last month based on the existing sexual harassment policy. But Saiki said the House will have a meeting Tuesday morning for both staff and members to review the new policy.

Changing The Culture Of Silence

Ashley Lukens, a former lobbyist who says she was sexually harassed during her time at the Capitol, appreciates the House is largely adopting national best practices. Still, she’s skeptical of its potential impact.

“I don’t actually have a ton of hope that this policy is going to change people’s experiences dramatically but it’s a start, it’s a good enough start that we can start talking about implementation and not changing the rules,” she said.

She didn’t report the harassment while working at the Capitol because she was worried about retribution.

“I was a lobbyist and I had bills to pay,” she said. “It just didn’t seem like it was worth sacrificing my entire legislative agenda which I had been working my ass off for years to get passed because a senator told me I was hot and I could meet him at his hotel.”

The bigger problem, she said, is an organizational culture that tolerates that behavior.

When asked whether he is doing anything to improve the Legislature’s culture of silence regarding sexual misconduct and encourage people to speak up, Saiki said the specific examples included in the policy “puts everyone on notice on what’s acceptable and what’s not acceptable.”

“The policy speaks for itself,” he later added, saying it is a clear indication of where House leadership stands on the issue.

“The policy is just one step,” Wong contends. True culture change “requires so much more.”

Below are the current and proposed House policies governing harassment: