Should taxpayers pay when elected officials engage in sexual misconduct?

Stateline‘s Jen Fifield, in a piece that ran on PBS News Hour, asks why taxpayers should have to foot the bill when a legislator engages in sexual misconduct and a settlement is reached with the victim:

When Pennsylvania state Rep. Thomas Caltagirone was accused of harassing a staff member, the Legislature settled the matter outside of court. The state’s insurance paid out $250,000 in 2015, and no one said a word — even during the next year’s elections, when Caltagirone retained his seat.

This secret settlement is one of many involving state lawmakers or legislative aides that have been exposed in the last few months, as a wave of sexual misconduct allegations has flooded the country. And in state after state, the allegations of wrongdoing quietly went away after victims received payouts from public funds.

The revelation that legislatures frequently use taxpayer money to protect lawmakers and staff accused of harassment or assault has sparked outrage and prompted reporters to try to tally up the bill.

I was among those whom Fifield contacted for an opinion, and here’s what I said:

But some employment lawyers, such as David Yamada, a law professor and director of the New Workplace Institute at Suffolk University in Boston, say the issue is more complicated than it seems.

Holding individual lawmakers, and not the government, responsible for sexual harassment may lessen the incentive for legislatures to offer sexual harassment training and to police their own, Yamada said. And, because some lawmakers may not be able to come up with the money for a settlement, it also may make it less likely that the victim will receive compensation for her claim.

“There are better ways to spend public money than to have to spend it to atone for the misdeeds of public servants,” Yamada said. But, he said, “We have to hold public employers liable.”

In other words, I understand the outrage over using taxpayer monies to cover for misbehaving legislators and other elected officials. However, if local, state, and federal governments are not held at least jointly responsible for the misconduct, then there’s scant organizational incentive to act preventively and responsively.

In addition, let me add that especially in the public sector, such settlements and dispositions should always be public. As the phrase goes, sunlight is always the best policy. Furthermore, there also should be ways to publicly discipline or, where appropriate, remove an elected official who engages in sexual misconduct. After all, holding elected office should not insulate someone from responsibility for his or her wrongful actions. In severe cases of misconduct, having to wait until the next election for a chance to “throw the bum out” should be unnecessary; once an appropriate investigative finding is made, out the door they should go.

When a prominent employee is fired for creating an “abusive work environment”

Workplace bullying, not sexual harassment, prompted this week’s termination of popular Boston public radio program host Tom Ashbrook by his employer, Boston University, which owns the WBUR-FM radio station. From the station’s report:

BU reached this decision after an independent review verified claims that Tom had created an abusive work environment. Over the past two months, while Ashbrook was off the air, two firms investigated allegations made by 11 former On Point producers. A law firm looked into the sexual harassment allegations and found that Tom’s unwelcome conduct was not sexual in nature, and did not constitute sexual harassment under university policy. A consulting firm looked into broader workplace culture issues at On Point. It concluded that Tom consistently overstepped reasonable lines and created a dysfunctional workplace. The investigators talked with about 60 people, including Tom and management.

In December, sexual harassment allegations against Ashbrook surfaced publicly, and soon it became evident that bullying-type behaviors were also part of the alleged misconduct. He was suspended by WBUR pending an investigation.

That month I was invited by WBUR to do a segment on the legal differences between sexual harassment and workplace bullying. On December 14 I was interviewed by Deborah Becker; you can read the transcript or listen to the 6-minute interview here. I used the term “abusive work environment” to describe how my proposed workplace anti-bullying legislation — known as the Healthy Workplace Bill — characterizes workplace bullying. I found it interesting that WBUR used the same term to describe Ashbrook’s conduct, distinguishing it from sexual harassment.

The Ashbrook situation raises several important points:

First, as we are seeing with other public allegations of sexual harassment, workplace bullying is often part of the picture. Accused serial sexual harasser Harvey Weinstein, for example, has also been tagged as a bullying boss. As reported last October by Brett Lang for Variety: 

In an industry known for attracting its share of screamers, few raged as violently as Harvey Weinstein. “There was a lot of pounding his fists on the desk and a lot of yelling,” said one of his former employees. “There was an anger inside of him that was jarring and scary.”

Another onetime staffer says that in recent years Weinstein had reined in a penchant for physical altercations but had not lost his talent for berating employees. He was particularly cruel with assistants and executives who didn’t push back when he tore into them.

Second, Ashbrook’s termination indicates that some employers are starting to get it about workplace bullying and its destructive effects on morale. Although it must be said that Ashbrook’s behavior was apparently no secret within WBUR for some time, when things did go public and the station ordered an investigation, they fired him despite a finding that there was insufficient evidence to support claims of sexual harassment. Rather, they cited the bullying behaviors as the main reason for the decision.

Third, this doesn’t mean that everyone is satisfied with a decision to terminate a well-known radio host for workplace bullying. Looking at social media comments, several posters accused Ashbrook’s co-workers of being “snowflakes” who couldn’t take his rough communication style. Based on my knowledge of folks who work in media settings, I would take issue with such characterizations. The electronic and print media are not vocations for the feint of heart, and I doubt that many folks at WBUR, if any, fit into the category of being “oversensitive.” But this is among the responses we can anticipate as more employers respond to workplace bullying.

On being responsibly bold (and other advice for legal activists)

The short version is here

At the recent therapeutic jurisprudence (TJ) workshop hosted by Professor Carol Zeiner and the St. Thomas University School of Law in Miami, Florida, I urged us all to be “responsibly bold” in our research and advocacy for legal and policy change. The term resonated with a number of workshop participants, and that response has prompted me to gather three clusters of advice for legal activists who are working toward the greater good.

The advice is based primarily on two ongoing points of significant involvement:

1. engaging in scholarship, legislative drafting and advocacy, and public education on workplace bullying and mobbing; and
2. researching and proposing law reform measures concerning the widespread practice of unpaid internships.

It is also informed by the promise of our new organization, the International Society for Therapeutic Jurisprudence, which is happily recruiting founding members.

I hope these thoughts will inspire your ideas about how to be effective in a legal activist mode.

Be responsibly bold

If it matters, write about it, even if no one else is doing so.

Take smart chances to be among the first, if not the first, to address a topic worthy of attention.

Furthermore, instead of merely analyzing the problem and providing broad parameters for a legal or policy response, offer a proposed solution with enough detail to lead the discussion on what should be done.

This may include outlining the specific strategy of a legal challenge or drafting a proposed statute or regulation.

As a law professor, I’ve noticed that some legal scholars opt not to take their analysis and writing this far. They critique a set of judicial decisions or an existing statute thoroughly and relentlessly, leaving nothing to pick over but the bones. However, when it comes to proposing a solution, they lapse into safer generalities. Rather than proposing, for example, specific language for a statutory amendment or a revised regulation, they morph into Impressionism and finish with erudite yet vague conclusions.

Instead, when recommending new or reformed public policies, the potential agenda setting approach is to write up the proposed statute or regulation. Greater specificity fuels the possibility of playing a more significant role in changing law and policy.

Be willing to write the first draft

Many years ago, Anthony Amsterdam, a New York University law professor and legendary civil rights lawyer, suggested to a group of new law instructors that if we are willing to be “the bottom name on the brief,” i.e., the person who does the grunt-level research and drafting even though others with fancier titles are listed above us on the pleading, then we can potentially enjoy the greatest influence over the shaping of the document.

Tony’s maxim taught me a lesson, and it has been verified in virtually every legal, political, policy, and bureaucratic setting to which I have been privy: Do a really good job on a first draft and the words continue to influence others. They may even help to frame a broader legal or policy agenda.

A quality brief or proposed statute becomes the template for others to borrow or tweak. A well-crafted set of talking points appears time and again in the remarks and speeches of others. A neatly worded resolution cuts through a lot of excess verbiage and half-baked thoughts in a meeting or conference.

Seek out partnerships and affiliations

A change agent should seek out partnerships and affiliations with organizations, associations, and agencies that can help to advance one’s work. Connections with the right groups and individuals can lead to a sharing of ideas, access, and resources. They can open doors that may appear to be closed when working solely on our own.

Considerations of partnerships and associations overlap strongly with writer and entrepreneur Seth Godin’s suggestion that in order to achieve desired change, those of like interests and commitments should gather together in “tribes.”

In his 2008 book, Tribes: We Need You to Lead Us, Godin defines a tribe as “a group of people connected to one another, connected to a leader, and connected to an idea,” adding that the two things a group needs to operate as tribe are “a shared interest and a way to communicate.”

He has further identified three types of tribes and individuals:

• Those who react,
• those who respond, and
• those who initiate.

He suggests that while many simply react or respond to external stimuli, genuine leaders initiate by recognizing needs and opportunities that others miss, thereby playing a greater part in shaping change.

I am currently serving as the first board chairperson of the International Society for Therapeutic Jurisprudence. For those interested in law reform that embraces well-being and psychological health, I hope that the ISTJ will serve as a nurturing, inclusive, and forward-looking tribe. One look at the overall state of the world should tell us that a TJ perspective is badly needed when it comes to informing our laws, legal systems, and legal institutions.

We’ve got our work cut out for us. Let us be among the change agents who offer responsibly bold and humane solutions that advance human dignity.

***

A slightly different version of this post was published by the Therapeutic Jurisprudence in the Mainstream blog. Portions of the above are adapted from my 2016 article, “Intellectual Activism and the Practice of Public Interest Law” (Southern California Review of Law and Social Justice), which can be downloaded here without charge.  It’s a very personal piece, filled with reflections on my experiences with law reform activities. The roles of TJ and interdisciplinary connections figure prominently in my commentary.

Our primary purpose behind “Workplace Bullying and Mobbing in the United States”

Volumes 1 and 2 are published!!!

Waiting for me in my office today was a box containing authors’ courtesy copies of the newly-published, two-volume book set that Dr. Maureen Duffy and I co-edited, Workplace Bullying and Mobbing in the United States (Praeger/ABC-CLIO, 2018). This was the first time that I’d held the actual printed volumes in my hands, and I have to say it was a happy and proud moment.

This is, after all, the culmination of a lot of work with a superb co-editor who invited me to join her in this endeavor and a very talented and smart group of contributors. The project reflected our deep and ongoing commitment to research and public education about workplace abuse. In fact, I would like to draw from our Preface to share our primary purpose behind the project:

Our primary purpose in developing this book set was to bring together important research and thinking about workplace bullying and mobbing from leading and emerging American researchers, theorists, and practitioners and to present that work in a comprehensive and systematic way. (For a chapter on applications from neuroscience, we did go half-way around the world to Australia to find the relevant expertise.) We assure our readers, especially those from outside the United States, that we were not being provincial or ethnocentric in choosing this focus. Rather, we understood that the employment context in the United States is very different from that in European nations, Australia, and Canada—countries that have produced so much foundational, high-quality research, scholarship, and commentary about workplace bullying and mobbing. For better and for worse, these American differences cover the major employment sectors (private, public, and nonprofit); systems of employee relations; and mechanisms for resolving legal and labor disputes.

In the context of this American focus, we perceived a need for an encyclopedic treatment of workplace bullying and mobbing that embraces multidisciplinary and multifaceted examination and analysis. We intended these volumes to be theoretically inclusive and to present a range of policy, practice, and research perspectives. We also wanted to showcase the accumulated wisdom of practitioners in the area of workplace bullying and mobbing so that readers would be able to juxtapose practitioner understandings and perspectives with those of researchers and scholars. In so doing, we tried to stay true to the most robust and comprehensive interpretation of evidence-based practice, namely, reliance on a combination of research and practice evidence with stakeholder values, priorities, and preferences.

We believe that the books will serve a variety of important uses for our readers. As we further stated in our Preface:

We hope that these volumes will be useful in different ways, depending on the individual reader’s needs. For some, this material will yield specific research summaries or potential good practices. For others, single chapters or groups of chapters will be worth cover-to-cover reads to obtain topical overviews. For those who want a comprehensive overview of workplace bullying and mobbing, a full reading of both volumes will provide a useful, comprehensive starting point. In any event, we trust that engaging with these volumes will be time well spent.

The book set includes 25 chapters written by over two dozen contributors, with some 600 pages packed into two volumes. You can use the “Look Inside” feature on the Amazon page to read the table of contents, Foreword, Preface, and first chapter. I also provided details about the book set in a January blog post.

With a $131 publisher’s retail price (e-book versions cost about 20 percent less), the volumes are aimed at researchers and practitioners who want an encyclopedic treatment of this topic, as well as specialized and general libraries. Most of the chapters are accessible to a general audience as well, and thus will be informative for individuals who simply want to learn more about the overall topic.

Therapeutic jurisprudence: Human dignity as a prime objective for law and public policy

(photo: Kathy Cerminara)

I just returned to Boston from a two-day workshop on therapeutic jurisprudence (TJ), hosted by Professor Carol Zeiner at the St. Thomas University School of Law in Miami. Like every other TJ gathering that I’ve been a part of, it was a compelling blend of thought-provoking ideas and information, matched by a wonderful sense of fellowship.

My talk was titled “TJ as a Framing Response to Anger, Shock & Trauma in Public Policy Making.” In addition to quickly surveying some of the disturbing developments in U.S. immigration and health care policy, I discussed the challenges of advocating for workplace anti-bullying legislation. The key message of my talk was that we must, without apology, frame debates about law reform and the making of legislation in terms of individual and collective dignity.

If you’d like a sampling of what TJ scholars and practitioners are working on, here’s the Day 1 agenda of our workshop:

And here’s the Day 2 agenda:

As some subscribers to this blog are aware, I am serving as board chair of the new, non-profit International Society for Therapeutic Jurisprudence (ISTJ). For many years, the TJ community existed as an informal, interdisciplinary network of scholars, practitioners, judges, and students. With the formation of the ISTJ, we are consolidating a variety of TJ initiatives and building a global organization for this growing community. Membership is open to all who share the goals of the ISTJ (not just lawyers!), with regular 2018 membership dues set at $25 USD and student memberships for free.