Legislature’s Bathroom Complaint Investigation Is Over, But No One’s Talking

August 23, 2018
Photo: Senate Bathroom Door | New Women's Sign - BBirkeland
Previously, this door did not have a sign that indicated it led to a women's restroom. Officials installed the standard placard to the right of the door that now properly labels its designation.

The results of an investigation into a workplace harassment complaint at the Colorado legislature that alleges a state senator used the wrong restroom inside the state capitol may never be known.

People familiar with the investigation, conducted by the Employer’s Council, a private human resources firm, said the report was complete in early June. Nearly three months later, neither side appears willing to release it or give details about the investigator’s findings.

Colorado Public Radio is a member/client of Employer’s Council.

In March, Republican state Sen. Beth Martinez Humenik filed a complaint alleging she saw Sen. Daniel Kagan, a Democrat, in the women’s restroom once and that two other female staffers saw him there on two separate occasions. At the time, the restroom, which was designated for female legislators and staff, was unmarked.

Martinez Humenik said she requested a copy of the investigator’s findings Aug.17, 2018 — one day after CPR News inquired about the investigation’s results.

“At this point I’m not able to speak about the issue,” stated Martinez Humenik in a text message before she said she’d read the findings. She agreed to speak about the results at some point, but subsequent requests for comment have so far gone unanswered.

For his part, Kagan said he wouldn’t release the investigation out of respect for Martinez Humenik and others who participated in the process anonymously.

Government transparency advocate Jeff Roberts, of the Colorado Freedom of Information Coalition, pointed out that “there was a fair amount of reporting on this and we are left with no conclusion at this point, or no public resolution” in an investigation that taxpayers paid for.

State figures show that the Kagan complaint cost Colorado about four times as much to investigate as other investigations involving only a single initial allegation. Larger investigations with multiple accusations, like in the case of ousted Rep. Steve Lebsock, cost much more. A legal expert on sexual harassment said simply using the wrong restroom could be inappropriate, but by itself doesn’t qualify as sexual harassment under the legislature’s workplace harassment policy.

Chart: Colorado Legislature Investigation Costs

In an earlier March interview, Martinez Humenik said she filed the complaint after hearing that others may also have had bathroom run-ins with Kagan. Her colleague, Republican Sen. Owen Hill, claimed to see him exiting while shepherding his two young daughters to the restroom.  She also complained Democrats were playing political games in their efforts to oust Republican Sen. Randy Baumgardner over sexual harassment allegations that were found credible. He ultimately survived an expulsion vote largely on party lines.

“I am beyond confused why they are so quick to leap to judgement and calls for resignation when just last session we couldn’t keep one of their male members out of the women’s restroom,” Martinez Humenik said in that March interview.

Kagan reiterated he did use the bathroom toward the end of the 2017 legislative session but said he didn’t use it multiple times.

“As I’ve said from the start, I mistakenly used the wrong unmarked restroom more than 18 months ago. I embarrassed myself and my colleagues and I apologize for this mistake.”

The bathroom sits in a hallway adjacent to the Senate chamber and in 2017 it had the same code as the unisex bathroom on a different floor. It could be accessed with a legislative key card and staff said the lock was sometimes broken. The bathroom also sits a few feet away from the men’s restroom, also unmarked.

The non-partisan Senate administrator had the code changed about a year after the alleged incident and after Martinez Humenik filed her complaint. A women’s sign was also installed at the end of the 2018 legislative session.

Republican Senate leaders in charge of the complaint process hired Employer’s Council to conduct the Kagan investigation. It’s the same company Senate President Kevin Grantham and majority leader Chris Holbert called biased after its investigators found sexual harassment allegations against Republican senators Jack Tate, Larry Crowder and Baumgardner to be credible.

Martinez Humenik filed the complaint with Grantham, as the legislature’s rules require. Grantham’s spokesman said the Senate President recused himself because prior statements could have been perceived as pre-judging Kagan. In March, Grantham told reporters he believed Kagan frequently used the women’s restroom and created an uncomfortable workplace environment. The senate majority whip, Greeley Republican John Cooke, took over as the contact person. It would still be up to senate leadership to determine any possible consequence if the allegation is deemed credible.