Indiana Legislature seeks to separate from AG in sexual harassment lawsuit

The Indiana House of Representatives and the Indiana Senate have filed separate motions in federal court to represent themselves in the sexual harassment lawsuit against Indiana Attorney General Curtis Hill Jr., claiming the state’s top lawyer cannot adequately defend their interests.

Majority leaders of both the House and Senate announced late Monday afternoon they had hired outside counsel and are trying to intervene in the litigation brought by four women against Hill and the state of Indiana. The Legislature retained Jackson Lewis attorney Susan Zoeller, who also helped the House and Senate craft new sexual harassment policies that were adopted during the 2019 session.

“Given the nature of this matter, we believe that independent legal counsel should represent the House and Senate,” House Speaker Brian Bosma, R-Indianapolis, said in a statement. “That’s why we hired an experienced employment attorney to intervene in the lawsuit and represent our interests as the employer of three of the four plaintiffs. House and Senate leadership took immediate and swift action after learning of the incident last year, and continue to support the women who came forward. We also remain committed to providing a positive and safe working environment for all employees.”

The women filed the lawsuit last month in the Southern Indiana District Court, claiming sexual harassment and retaliation stemming from their allegations that Hill drunkenly groped them. In Niki DaSilva, Samantha Lozano, Gabrielle McLemore and Mara Reardon v. State of Indiana and Curtis T. Hill, Jr. individually and in his capacity as the Indiana Attorney General, 1:19-cv-2453, the plaintiffs claim the Attorney General “smelled like alcohol” at the 2018 sine die party and made inappropriate comments and advances, including telling them to show more skin and grabbing their buttocks.

“To avoid any conflict or even the appearance of a conflict with the Attorney General, who is also a party in this lawsuit, the House and Senate have chosen to hire Susan Zoeller to represent out respective chambers as outside counsel,” Senate President Pro Tem Rodric Bray, R-Martinsville, said in a statement. “Zoeller has become a trusted adviser for the House and Senate in these matters, and we believe she will provide the guidance we need. The health and safety of our employees is paramount.”

The briefs supporting the House’s motion and Senate’s motion argue that as the employers of Samantha Lozano, Niki DaSilva and Garbrielle McLemore, the chambers are the proper defendants in the Title VII claims. Lozano is a legislative assistant to the Indiana House of Representatives Democratic Caucus, DaSilva is a legislative assistant for the Indiana Senate Republican Caucus, and McLemore is the communications director for the Indiana Senate Democrat Caucus. The fourth plaintiff, Mara Candelaria Reardon, is a Democratic representative from Munster.

Also, in a footnote, the House and Senate claim they have Article III standing. They assert if the plaintiffs are awarded monetary and injunctive relief on their Title VII claims, they would suffer injury-in-fact because they would be responsible for the compensatory damages.

Relatedly, the House and Senate argue they have a sufficient interest and should be allowed to intervene since they could be liable under Title VII. However, both chambers seek to distance themselves from Hill’s alleged misconduct by maintaining they are liable only if they were negligent in responding to the harassment. Also, they assert they have no control over the Attorney General because he is an elected official of the executive branch and not an employee of the Legislature.

In addition, the House and Senate argue Hill has a “demonstrable conflict of interest” with both chambers. Noting their liability depends on the reasonableness of their investigation and corrective action, they assert Hill’s public attack on their investigation into the allegations of his sexual misconduct shows he cannot adequately represent their interests.

Moreover, the House and Senate claim the Attorney General’s recent motion to dismiss further demonstrates their interests are not adequately represented. Namely, Hill asserts the plaintiffs should have filed a complaint under the Government Employee Rights Act of 1991 rather than Title VII. However, the House and Senate countered even though they have “superior knowledge and understanding” between the plaintiffs and elected officials, the Attorney General’s Office did not contact either of them to investigate the facts or even confirm its independent analysis was correct.

“The Attorney General has a disqualifying ethical conflict of interest under Rule 1.7 of the Indiana Rules of Professional Conduct governing attorneys and, by extension, so does his entire office,” the House and Senate argue. “Attorney General Hill’s demonstrated personal interest in protecting his own reputation, including by attacking the (Senate’s and House’s) investigation, disqualifies him from representing the State or the Senate (or the House).”

The chambers also contend they do not consent to Hill’s representation under Rule 1.7(b)(4) of the Indiana Rules of Professional Conduct and they, under Indiana Code section 2-3-9-2(a)(3), (b), are not required to obtain the Attorney General’s consent to retain outside counsel.

In the alternative, the House and Senate argue they should be granted permission to intervene under Rule 24(b)(2) of the Federal Rules of Civil Procedure. They contend they ought to be allowed to defend themselves and the “prompt, appropriate corrective action based on reasonable policies” that they took once they learned of the plaintiffs’ claims.