The morning after a contentious vote on one of the most controversial bills of the 2019 legislative session last March, jars of Vaseline showed up on the desks of some lawmakers in a move one of those targeted said was overtly threatening, sexual and meant to intimidate or influence votes.
A legislative panel formed under a new harassment and discrimination policy passed earlier this year asked the Legislature's legal services division for a preliminary legal assessment of the incident. The assessment found that while what happened did not meet the Legislature's standards of decorum, it also did not fit the definition of harassment under the law.
"The placement of (containers) of sexually suggestive lubricant on a legislator's desk might reasonable (sic) be construed as a threat of physical harm intended to influence that legislator's vote," Rep. David Bedey of Hamilton wrote in a letter to Speaker of the House Greg Hertz after the incident.
March 29 was one of the most intense sessions on the state House floor during the last legislative session. It was the day lawmakers, after two hours of debate and 10 proposed amendments (all but one of which failed) gave their initial approval to the bill that would extend Medicaid expansion in the state.
The critical vote split wide the divide between Republicans in the state House. Those on the more conservative end of the spectrum said their fellow GOP lawmakers were selling out Montanans by joining with all Democrats to support the bill. Members of the so-called Solutions Caucus said passing the bill was a responsible way to provide necessary health care to 95,000 Montanans. Both sides traded accusations of the other being "disingenuous."
The following morning, a Saturday, state Rep. Wendy McKamey, a Republican from Great Falls who voted for Medicaid expansion, saw the House Sergeant at Arms removing containers of Vaseline from the desks of some lawmakers.
McKamey was "disgusted and revolted by the connotation."
"She also felt that the connotation was overtly threatening and sexual. Representative McKamey 'felt the House had been desecrated by this hostile, intimidating act of harassment,'" according to a report prepared for the Legislative Conduct Panel in July.
She, along with Reps. Julie Dooling of Helena; and Denly Loge of St. Regis; later filed complaints under the harassment policy. The complaints came weeks after the event, because the three all said they believed that Hertz, the Speaker, would deal with the situation and discipline those involved.
While Hertz did tell House members not to leave items anonymously on lawmakers' desks, the three who filed complaints said that didn't go far enough.
“I knew the action was kind of a dig at not liking the way we voted on an issue,” Loge said Friday. “People don’t agree on issues all the time, I just thought it was beneath the level of dignity we need to maintain. I think they could have dug in and found out who did it and the the Speaker of the House probably should have dug in right away and found out and at least made a little reprimand."
McKamey was clear she did not want to be seen as a victim, but said she found it a “stupid act, and a disgusting act and a completely reprehensible act, beneath the dignity of any elected official,” and that without the Speaker taking action, she felt the complaint was her only avenue.
“To have it happen on the House floor was almost sacrosanct to me. It felt like it was a desecration. It felt like it was a threat. It felt like it was a disgusting, horrible threat to be doing to a few select, chosen people. It did not seem like a prank to me,” McKamey said Friday.
Medicaid expansion cleared the House for the first time the day before Vaseline was left on what Dooling estimates was 19-20 lawmakers desks. The bill was signed into law in May. McKamey and Loge voted for it, while Dooling voted against it on both March 29 and March 30, as well as on the final House vote in April.
“This may have been relatively minor in a lot of people’s eyes, but it was a vindictive action. It was just because of my association with a group of individuals,” Dooling said.
Several other Republican lawmakers signed onto the complaints. That included Rep. Ed Buttrey, a Great Falls Republican who carried the bill, Rep. Llew Jones, of Conrad; Rep. Ray Shaw of Sheridan; Rep. Joel Krautter of Sidney; Rep. Frank Garner of Kalispell, and Rep. Walt Sales of Manhattan. Bedey "effectively joined the complaint, the report says. All voted for Medicaid expansion.
They are all also members of or associated with the so-called Solutions Caucus, which in some cases joined with Democrats to pass bills like Medicaid expansion. In the final days of the session, members of the more conservative wing of the party, who dubbed themselves the 38 Special because that was their total number in the House, posed for a photo of what they called the "real" Republicans in the body.
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It's frustrating to Dooling, McKamey and Loge that those responsible were not identified.
“I don’t really know if they did a full-blown investigation to find out who did it, but it just seems like they concentrated on the act and not necessarily who did it,” Dooling said.
The report says Dooling's complaint alleged an individual or individuals who were responsible for the incident, but the report says no one was observed placing containers on the desks. The Sergeant at Arms said neither he nor House staff knew who left the jars on desks. There are no security cameras covering the House floor and those used to broadcast hearings are only turned on just before sessions start.
Bedey wrote a letter to Speaker of the House Greg Hertz after the incident and said in a leadership meeting the Monday after it occurred that "this matter goes far beyond a breach of decorum," according to the report from legislative legal services.
He went on to say the event was "deeply upsetting to many members of the Republican caucus" and "cast a pall over the remainder of the legislative session."
Hertz, who is on the Legislative Conduct Panel, was interviewed early this summer about the complaints before they were made public and was not immediately available Friday.
Senate President Scott Sales, also on the panel, said Friday that if the incident rose to the level of harassment, then legislative leadership would have investigated further into who was responsible for leaving the jars. He added that he believes Hertz is still working to address the issue and talk with those involved about their behavior.
The Legislative Conduct Panel, made up of Hertz, Sales, Senate Minority Leader Jon Sesso of Butte; and House Minority Leader Casey Schreiner of Great Falls, asked its staff to do a preliminary legal assessment to see if the incident it constituted harassment, as defined in Montana law. That assessment was reviewed by an independent, third-party attorney experienced with harassment law.
The incident did not meet the definition of harassment for several reasons, including that it was not frequent, severe or pervasive and did not cause physiological injury, according to the report. Since jars were left on the desks of male and female lawmakers, it could also not be established that the action was based on sex.
"While the incident outlined in the complaint may be insensitive and offensive, based on the available facts it is a one-time incident with a gender-neutral application and likely cannot have so permeated the legislative workplace 'with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions' of the legislators' service to the state of Montana," the report reads.
In August the Legislative Conduct Panel wrote that after serious deliberation, it determined the circumstances were "not legally actionable."
"Nevertheless, although the circumstances of this situation do not rise to the level of actionable conduct under the law, the events and actions that precipitated the complaints also do not rise to the standards of decorum and integrity expected of individuals involved in the legislative process. Appropriate action with respect to the breach of decorum will need to be taken up under the rules of the House," the letter reads.
Sales said while the outside legal counsel did not determine the incident to be harassment, it was an inappropriate action for lawmakers in his eyes.
“The issues that have been brought before us, in my opinion and in the opinion of all four of us, didn’t rise to the level of decorum we expect of our membership,” Sales said. “That’s a pretty high bar that we try to operate under, in my opinion. In some ways it’s a higher bar. It’s still a violation of our decorum, but is it sexual harassment or workplace discrimination? The answer is no."
The three lawmakers who filed the complaint could take the issue to the Montana Human Rights Bureau, which deals with workplace harassment complaints, but neither Dooling, McKamey nor Loge said they were likely to do that.
“I don’t want to spend time spinning my wheels and I don’t see anything other than wheel-spinning in the future with this,” McKamey said.