Lowry Inquiry Reveals Loopholes In System In-House Legal Advisers Appoint Anonymous Attorney To Probe Sex Harassment Charges
Probes of sexualharassment allegations against Gov. Mike Lowry expose a sticking point in state ethics law: Who appoints the investigator and how can the person’s independence be assured?
Two of Lowry’s top in-house legal advisers have appointed an outside attorney they know, at no charge, to look into allegations that the governor repeatedly sexually harassed his former deputy press secretary, Susanne Albright.
Is that arm’s length enough?
Shawn Newman, an Olympia lawyer who handles sex-harassment cases and is president of the citizen watchdog group CLEAN, says nothing less than a completely independent probe will do.
“Anything internal and the people will always believe it will be tainted,” he said in an interview Sunday. “And it always serves the interests of the person who is under investigation. It needs to be totally independent.”
Larry Finegold, a criminal defense attorney who has taken Albright’s case, says that at the very least, the investigator’s name should be made public. He said the investigator’s anonymity reduces the likelihood that witnesses or other potential victims will come forward, since they won’t know whom to contact.
“The best way to keep the investigation in the dark is to keep the investigator in the dark,” Finegold told The Seattle Times.
Attorney General Christine Gregoire said Sunday her office will not investigate unless Albright files a lawsuit against the governor. The attorney general’s office is legal adviser, and potential defender, of the governor and might have a perceived conflict of interest in investigating him, she said.
She conceded that the governor’s office appointment of outside counsel won’t assure some citizens, either. But she said it’s the advice her office gave Lowry, based on current policy.
Albright, a former journalist and a publicist for the Senate Democrats, joined Lowry’s staff in mid-1993. She says she left her $48,000-a-year job in November because of “very clear and persistent unacceptable behavior by the governor toward me.”
She has not filed a formal complaint or lawsuit, making it doubly inappropriate for the attorney general to be involved at this point, Gregoire said.
The governor flatly denies any impropriety.
“I was stunned when I learned of this. This is an excellent employee, very professional, done a fine job,” Lowry told Seattle’s KING-TV on Sunday. “I never did anything inappropriate.”
Lowry said he supports the naming of an outside investigator, whom his office declines to identify other than to say she is a Seattle attorney who has experience in harassment cases.
“I believe very strongly … that every employer’s top responsibility is make sure all the people that work for them, that their rights are all protected,” the governor said.
“It’s important we have a process, we make sure all individuals are protected and … that’s the type of process we’re following.”
But how independent is that process?
Washington has no office of special prosecutor or ethics investigator, and no mechanism for appointing one by the Supreme Court, Legislature or anyone else.
The Human Rights Commission, which normally handles sexual harassment complaints, has its own built-in conflict, since its members are appointed by the governor, Gregoire noted.
The attorney general’s office shouldn’t be wearing the hats of both the investigator and defender, due to the appearance of a conflict of interest, she said.
The attorney general’s office reluctantly agreed last year to look at an earlier allegation against Lowry. A State Patrol employee said the governor pressed his body against the woman in a sexual way when she was fingerprinting him for a national security clearance. Lowry denied any impropriety. The attorney general could not corroborate the woman’s statement and Lowry had a witness who said he did nothing wrong.
In retrospect, it was naive to think the attorney general, even though separately elected and not beholden to the governor, could handle the complaint without the appearance of a conflict, Gregoire said.
“Every angle you take has got pitfalls to it,” she said.
The attorney general declined to be involved in the Albright case.
“We will advise you one more time: Appoint an investigator,” Gregoire said her office told Lowry’s aides.
Lowry’s legal aides, Kent Caputo and Jenny Durkan, then appointed a special investigator. Caputo said the investigator is being given full independence.
“We have had no control, no muzzle, no leash on this person,” Caputo said in an interview. “We are making every effort to make this as independent as possible.”
Lowry said the lawyer hasn’t interviewed him and that he doesn’t know whom she has talked with so far.
If the governor is sued, the attorney general will get involved.
“Then we would have no choice, because we would have to do an independent look at whether he has a legitimate claim to say, `No, I didn’t do it,”’ Gregoire said. “If we investigated it (her claim) and verified it, at least as a preponderance, we would say he is not entitled to indemnification or legal representation at public expense.”
Legislative leaders, meanwhile, had only muted reaction to the weekend bombshell. It’s far too early to say if the allegations will have a lasting effect on Democrat Lowry’s relations with the Legislature, said House Majority Leader Dale Foreman, R-Wenatchee.
“My reaction would be the same as anyone else’s, one of surprise,” said Senate Majority Leader Marcus Gaspard, D-Puyallup. “It sounds as if he’s taking the right steps.”
xxxx Who investigates? Washington has no office of special prosecutor or ethics investigator, and no mechanism for appointing one by the Supreme Court, Legislature or anyone else.