On Monday night, the Denver City Council appeared to settle weeks of questions about how it would handle the question of Mayor Michael Hancock’s suggestive text messages to Det. Leslie Branch-Wise.
The elected officials said they were disappointed by the mayor’s behavior in 2012, but they wouldn’t be holding hearings or hiring investigators to look into the mayor’s behavior.
They have promised to tackle a gap in the city’s rules about harassment, and the mayor added his support late on Tuesday — but it won’t be simple.
The current rules don’t apply to elected officials.
In Denver, the Code of Conduct and Discipline says that “unwanted sexual … comments” are harassment. Branch-Wise said it was harassment. Hancock has denied that it was harassment.
And if an employee says they’ve been harassed, their department must “conduct a timely investigation … concerning any allegations of harassment,” the rules state. When it’s done, the accused might get a written reprimand, or an unpaid suspension — or they could be fired.
Those rules do not, however, apply to Mayor Michael Hancock and the city council, so there is no requirement that anyone conduct an investigation or consider discipline.
In statements this week, both the mayor and the council said they would work to create systems to handle future complaints.
Other cities do it differently.
The city of Carmel-by-the-Sea, California, population 4,000, dealt with a similar scandal to Hancock’s this year, but they handled it differently.
When Mayor Steve Dallas was accused of making suggestive comments to a woman, the city attorney launched an investigation at a reported cost of more than $25,000. (Dallas apologized after the investigation was published.)
In San Francisco, sexual harassment policies explicitly include elected officials, according to Susan Gard, director of human resources.
“All of those apply to elected officials, as well as regular employees for the city,” Gard said. Once a complaint is received, the city undertakes an investigation either in-house or with an external investigator, she said.
Elected officials in New York City also are covered by sexual harassment policies.
What would an investigation accomplish?
If an investigation were to happen, it could settle the question of Hancock’s “intent” when he sent the messages, according to Branch-Wise’s attorney. That could settle the question of whether or not Hancock’s behavior constituted harassment, he suggested in a letter.
But the Denver City Council has offered various reasons that it won’t hire an investigator or use its own subpoena power in this case.
Among them: It’s unclear what the body would do with an investigation. The council can’t draw a “legal conclusion” about the case, according to its latest statement.
Instead, the council suggested that it would “lead by example” by creating a policy for reporting and investigating complaint about its members. It suggested that the mayor should do the same.
In a statement late on Tuesday, the mayor’s office agreed.
“One additional item that remains to be addressed is complaints against elected officials. The Mayor will work with City Council and other elected leaders to evaluate how best to address workplace claims by a city employee that involve an elected official,” wrote spokeswoman Amber Miller.
“This is the right step to take and one that will be closely coordinated with the Office of Human Resources, Internal Affairs and the City Attorney’s Office.”
The city also is working to improve its oversight of harassment complaints, according to a statement from Brooks. Denver hasn’t previously kept statistics on sexual harassment discipline or the legal settlements it has paid in these cases.
But that policy could run into a very similar problem.
There’s no allegation that Hancock broke the law by sending text messages declaring that a city employee made it “hard on a brotha to keep it correct” and describing her as “sexy.”
And it’s really hard to punish elected officials when they haven’t broken the law.
Even though San Francisco’s rules cover harassment, city leaders couldn’t force an official out or even dock their pay, according to Gard.
“Because it is an elected official, their supervisor is the people. It’s an interesting situation in terms of discipline,” said Gard, referring to San Francisco’s rules.
“You can’t fire them. … Typically, what people do is they’ll resign, or they’ll say, ‘No, I’ll never resign,’ and public pressure will mount.”
For example, the mayor of Carmel-by-the-Sea was subject only to a reprimand by the council after that $25,000-plus investigation. In Denver, Councilman Kevin Flynn suggested that voters hold the true oversight of the mayor here.
“The disciplinary process for the mayor is the next election,” he said last month. (Voters also could recall for a recall election, or Hancock could trigger a special election by resigning.)
In some bodies — like the Colorado state legislature — legislators can vote to expel members. The city of Phoenix also will soon ask voters whether council members should be allowed to expel elected officials for harassment.
But that’s not currently possible in Denver and many cities, and there’s still little sign of consensus as governments move to update their laws.
“Some local governments and state governments have adopted policies to provide vehicles for people who have complaints about the conduct of elected officials, but I think there is not a lot of uniformity in those policies,” wrote Charles Thompson Jr., executive director of the International Municipal Lawyers Association, in an email to Denverite.
” … I think that some states and local governments are struggling to figure out what the best policy ought to be.”