Investigation Into One Lobbyist’s Actions Raises Questions About Workplace Harassment Policy At The Capitol
State Sen. Jessie Danielson was talking to friends and colleagues at a fundraising dinner at the Four Seasons Hotel in Denver nearly four years ago when lobbyist Benjamin Waters allegedly walked up and grabbed her buttocks. The incident has been the subject of a formal investigation that concluded in February of this year.
“No one's allowed to touch people like that,” Danielson told CPR recently. “So the fact that a lobbyist came up to me, at a work event, and did that was embarrassing and belittling. It didn't much matter what his job was, he still came up and thought that he was entitled to touch me like that.”
Waters denies the allegation.
“I have never grabbed or slapped [Complainant’s] butt in jest or otherwise on any occasion,” Waters told investigator Mark Flynn of Employment Matters LLC, who was hired to review the claim. Flynn disagreed with Waters and wrote, “This investigator finds it more likely than not that Respondent’s conduct violates the Policy as harassing conduct that denigrates Complainant because of sex.”
Under the Capitol’s current workplace policy, there is no mechanism to hold lobbyists and other third parties who work there accountable if they harass someone. Whether that should change is part of a larger discussion about updates to the legislature’s workplace harassment policy that lawmakers are expected to debate in the final days of the session.
Expanding the policy to lobbyists would require a rule change approved by both the House and the Senate with a two-thirds vote.
“They are part of the workplace environment, but they are not legislators. They're not elected officials,” said Democratic Sen. Majority Leader Steve Fenberg. “So we need to sort of thread the needle of what happens if they are involved in a potential violation, who oversees that investigation and what types of punishments are appropriate.”
Danielson, a Democrat from Wheat Ridge, said she was moved to file a formal complaint late 2018 after she had learned Waters was bad-mouthing her around the Capitol.
“Because not only had he harassed me, but then he was threatening retaliation or retaliatory actions because I confronted the harassment. And that to me is as dangerous as the initial harassment itself,” Danielson said.
Flynn’s investigation, however, did not conclude that Waters had retaliated against her. Flynn wrote that he thought the lobbyist was someone “prone to make unconventional remarks observed by others as shocking,” so critical comments about Danielson couldn’t be linked to the underlying incident. Flynn also did not find it credible that Waters created a hostile workplace because it was an isolated incident that was not severe enough, and Danielson was able to avoid working with him.
The Original Incident
Waters, who is a Democrat and openly gay, has been a registered lobbyist since 2007. Some of his clients include Mile High United Way, Colorado Association of Gifted and Talented, Fostering Colorado, Colorado LGBTQ Chamber of Commerce, Native Roots and the Colorado Coalition of Land Trusts among others.
Shortly after the One Colorado dinner in August 2015, Danielson requested a meeting with Waters and then-House Chief of Staff Ian Silverii to talk about what happened. In describing that conversation to the investigator, Waters said he apologized out of deference to Danielson but that he “did not remember anything like that occurring.” Waters recalled saying, “I am deeply sorry if that’s what you experienced, and I pledge that nothing like that will happen in the future.”
CPR reached out to Waters for an interview about the incident and complaint. He responded with a written statement.
“I am sorry for any behavior that made someone feel unsafe or uncomfortable. I immediately apologized once the issue was brought to my attention more than four years ago and pledged that it would not happen again. I have since reflected on my behavior and am committed to making sure everyone feels safe in the workplace.”
Waters has not requested a copy of the report so he hasn’t yet read the investigator’s findings.
“This process has been handled well. I’ve learned a lot and appreciate the opportunity to better understand the concerns of all parties. I commend the legislators for putting this protocol in place to give all sides a voice and an opportunity to be heard when issues arise.”
After their meeting, Danielson and Waters both thought the matter was resolved. Danielson decided not to resume working with Waters on bills, and he confirmed to the investigator that they stopped communicating.
In fact, Danielson said the issue didn’t come up again until 2017 when she said she started to hear that Waters had been making disparaging remarks about her because of the initial confrontation about the harassment. Danielson was headed into a busy legislative session and a competitive senate race, so she decided to file her formal complaint on Dec. 3, 2018, after the election was over. Then-Speaker of the House Crisanta Duran hired Employment Matters LLC to investigate. CPR obtained a copy of that report.
The investigator interviewed one woman, known as Witness 3, who said Waters had also acted inappropriately with her and she feels he gets away with this type of conduct toward women because he is gay.
“[Respondent] has grabbed my [body parts] more times than I can remember.” She told the investigator she set some boundaries a few years ago and the physical behavior stopped but not the inappropriate comments: “It’s still about power.”
A Question Of Retaliation
One of Danielson’s main reasons for moving forward formally was her charge that Waters had retaliated against her. She heard from Witness 3 that he was going to “take her down” for turning him in.
Witness 3 told the investigator she’d heard secondhand that, “He would say. ‘You know she reported me for grabbing her.’”
The investigator couldn’t confirm those comments. The person who had told Witness 3 declined to participate in the investigation because she was not granted anonymity and she feared retaliation. Reached by CPR recently, the woman said Waters made those remarks to her in 2017.
Witness 3 added in the report, “My perception is he retaliates about everything. That’s just who he is. I think he considers us friends. I’m cautious about that friendship.”
Democratic political strategist Audrey Kline remembers talking to Waters in 2017 about state senate races that would be in play in the next election when Danielson’s name came up. Kline told the investigator and CPR that it seemed like Waters had a vendetta against Danielson and wanted revenge.
“It got really vicious really fast,” Kline told CPR.“To go after Jessie and then sort of dwell on it. And the way that he did was, it was ‘shocking’ is the word that comes to mind. It was not sort of politics as usual. It was … ‘I'm going to make her life miserable.’ And ‘I'm coming right for her.’” Kline added, “I'm willing to talk right now because I don't work with Benjamin, and he doesn't have any power over me or, or my livelihood.”
Under the legislature’s workplace harassment policy “retaliation can be any action that is taken against a person that would deter a reasonable person from coming forward to complain of misbehavior under this Policy.”
Waters denied retaliating against Danielson.
“I have never suggested that I would ‘take down’ [Complainant]. I do not have the power to do so either,” he told the investigator. “I have not called [Complainant] horrible but I have heard others call her that.”
Though Flynn concluded Waters likely did make unprofessional comments about Danielson, including a potential threat to “make her life miserable,” he said the link between the 2015 incident and Waters’ criticisms was too tenuous. “Waters has a reputation of making critical comments about others, too, and doing it in a variety of contexts apart from this occasion,” Flynn wrote.
The investigator also explained why he didn’t conclude Waters created a hostile workplace.
“The act appears sexual in nature, unwelcome, and unreasonably offensive, but not so severe as to effectuate a hostile environment under the policy,” he wrote. Flynn said it didn’t “substantially interfere with [Complainant’s] work performance” and took into account the fact that the two had been friends at one point.
“This is not to excuse the offensive conduct at issue, but only to recognize that Complainant knew at the time that the contact came from Complainant’s friend, who acts inappropriately on occasion. That seems far less threatening than, for example, a similar act by a stranger with sexual intent,” the report reads.
Flynn also said Danielson’s decision to cut off contact with Waters after the incident “does not appear reasonably justified” and was “too extreme under the circumstances.”
Indiana University Law Professor Jennifer Drobac, a national expert on sexual harassment, reviewed the investigation and took issue with those conclusions.
“So what is severe? I think that the touching of an intimate body part is severe. And if it's not, what threshold is he using for severity?” she said. “It is ludicrous to say that if women can go around avoiding their harassers, there is no hostile work environment. That would totally defeat anti-discrimination laws.”
As for retaliation, “She complains and he starts bad-mouthing her,” Drobac said. “I’m stunned the investigator didn’t see this.”
Current Speaker of the House KC Becker oversaw the investigation and reviewed the final report. She asked Waters to take sensitivity training, which he agreed to do.
For her part, Danielson thinks the Capitol’s system for handling complaints is inadequate.
“I was very hopeful that we would have already dealt with some kind of legislation to help remedy some of these problems. That's also part of why I think it's important to come forward now is to remind folks that this is still a problem,” Danielson said. “It happens to people. And if we don't stand up and do something about it, it's going to continue to happen.”
During the 2018 legislative session, workplace harassment allegations against five state lawmakers were found to be credible. Former Democratic Rep. Steve Lebsock was expelled from office, the first expulsion in 103 years. Former Republican Sen. Randy Baumgardner resigned after three separate investigations concluded he had created a hostile and offensive workplace.
The legislature has spent nearly $400,000 dealing with workplace harassment so far.
Investigations Law Group studied the Capitol’s culture. The consultants surveyed more than 500 people and concluded that female lawmakers were the most likely demographic to experience or observe harassing behavior or sexist conduct. State lawmakers were the most likely to harass people.
The current legislature wraps up its work May 3. The issue of lobbyists has not been widely discussed yet in either chamber, or whether a record of credible complaints against lawmakers should be released to the public, although a bill has been introduced to do that.
The Senate plans to set up a bipartisan committee to oversee complaints and review investigations, so it no longer falls to the top Senate leader. The House is expected to propose a similar idea. The goal is to depoliticize the process, although it creates less confidentiality for accusers, which could reduce the number of complaints filed, and the evenly split committee would be vulnerable to reaching a deadlock on recommendations for consequences.
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