[House Report 115-1041]
[From the U.S. Government Publishing Office]


                                                House Calendar No. 193
115th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {     115-1041
_______________________________________________________________________

                                     

 

                IN THE MATTER OF ALLEGATIONS RELATING TO

                      REPRESENTATIVE RUBEN KIHUEN

                               __________

                              R E P O R T

                                 of the

                          COMMITTEE ON ETHICS







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 November 20, 2018.--Referred to the House Calendar and ordered to be 
                                printed

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                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
89-006                    WASHINGTON : 2018                 
























                          COMMITTEE ON ETHICS

SUSAN W. BROOKS, Indiana             THEODORE E. DEUTCH, Florida
  Chairwoman                           Ranking Member
KENNY MARCHANT, Texas                YVETTE D. CLARKE, New York
LEONARD LANCE, New Jersey            JARED POLIS, Colorado
MIMI WALTERS, California             ANTHONY BROWN, Maryland
JOHN RATCLIFFE, Texas                STEVE COHEN, Tennessee

                              REPORT STAFF

              Thomas A. Rust, Chief Counsel/Staff Director
             Brittney Pescatore, Director of Investigations
               Megan H. Savage, Counsel to the Chairwoman
            Daniel J. Taylor, Counsel to the Ranking Member

                        C. Ezekiel Ross, Counsel
                      Katherine L. Dacey, Counsel
                     Molly N. McCarty, Investigator
                   Mark Hamilton, Investigative Clerk
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                   
                         LETTER OF TRANSMITTAL

                              ----------                              

                          House of Representatives,
                                       Committee on Ethics,
                                 Washington, DC, November 16, 2018.
Hon. Karen L. Haas,
Clerk, House of Representatives,
Washington, DC.
    Dear Ms. Haas: Pursuant to clauses 3(a)(2) and 3(b) of Rule 
XI of the Rules of the House of Representatives, we herewith 
transmit the attached report, ``In the Matter of Allegations 
Relating to Representative Ruben Kihuen.''
            Sincerely,
                                   Susan W. Brooks,
                                           Chairwoman.
                                   Theodore E. Deutch,
                                           Ranking Member.
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                                           
                            C O N T E N T S

                              ----------                              
 I. INTRODUCTION......................................................1
II. PROCEDURAL HISTORY................................................2
III.FINDINGS AND CONCLUSIONS..........................................3

IV. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(c)......................6
APPENDIX A: REPORT OF THE INVESTIGATIVE SUBCOMMITTEE.............     7
APPENDIX B: REPRESENTATIVE KIHUEN'S SUBMISSION TO THE COMMITTEE..   176










                                                House Calendar No. 193
115th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {     115-1041
======================================================================



 
  IN THE MATTER OF ALLEGATIONS RELATING TO REPRESENTATIVE RUBEN KIHUEN

                                _______
                                

 November 20, 2018.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

   Ms. Brooks, from the Committee on Ethics, submitted the following

                              R E P O R T

    In accordance with House Rule XI, clauses 3(a)(2) and 3(b), 
the Committee on Ethics (``Committee'') hereby submits the 
following Report to the House of Representatives:

                             I. INTRODUCTION

    On December 21, 2017, the Committee, in accordance with 
House Rule XI, clause 3, and Committee Rules 10(a)(2) and 18, 
unanimously voted to establish an investigative subcommittee 
(``ISC'') to determine whether Representative Kihuen engaged in 
conduct that constitutes sexual harassment, in violation of 
House Rules, law, regulations, or other standards of conduct. 
On September 26, 2018, the ISC transmitted its Report to the 
full Committee, summarizing its findings and recommending that 
the Committee reprove Representative Kihuen for his conduct.
    The Committee agrees with the findings and conclusions the 
ISC reached following its thorough nine-month investigation.\1\ 
Specifically, the Committee found that Representative Kihuen 
made persistent and unwanted advances towards women who were 
required to interact with him as part of their professional 
responsibilities. The Committee also found that Representative 
Kihuen's actions violated clause 1 and clause 2 of the Code of 
Official Conduct, and that his conduct warrants reproval by the 
Committee.
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    \1\The Committee thanks the Members of the ISC for their efforts 
and attention to this matter.
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    On November 15, 2018, the Committee voted to adopt the 
ISC's Report, which, along with this Report, will serve as a 
reproval of Representative Kihuen. The ISC's Report is 
transmitted as an appendix to this Report.\2\
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    \2\See Appendix A.
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                         II. PROCEDURAL HISTORY

    On December 21, 2017, the Committee voted to establish an 
ISC to investigate allegations involving Representative Kihuen. 
On January 2, 2018, the Committee announced that Representative 
Kenny Marchant was designated ISC Chairman, Representative 
Yvette Clarke was designated ISC Ranking Member, and 
Representative Jackie Walorski and Representative Brian Higgins 
were designated Members of the ISC.
    The ISC issued voluntary requests for information to 
Representative Kihuen and six other individuals. In response to 
those requests, the ISC obtained and reviewed over 2,700 pages 
of materials. The ISC met a total of eleven times and 
interviewed twelve witnesses, including individuals who have 
publicly raised allegations against Representative Kihuen, 
corroborating witnesses, members of Representative Kihuen's 
campaign and congressional staffs, character witnesses 
proffered by Representative Kihuen, and Representative Kihuen 
himself. In addition, the ISC reviewed Representative Kihuen's 
written submissions regarding the allegations in this matter.
    On September 26, 2018, the ISC unanimously voted to adopt 
and issue its Report, finding that Representative Kihuen 
violated clause 1 and clause 2 of the Code of Official Conduct. 
The ISC did not recommend a sanction requiring floor action by 
the House of Representatives, but did recommend that the 
Committee reprove Representative Kihuen, a sanction which the 
Committee is authorized by the House Rules to issue on its own 
authority.\3\ As the Committee has noted previously, reproval 
by the Committee is ``intended to be a clear public statement 
of rebuke of a Member's conduct issued by a body of that 
Member's peers acting . . . on behalf of the House of 
Representatives.''\4\
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    \3\House Rule XI, clause 3(a)(1).
    \4\Comm. on Ethics, In the Matter of Allegations Relating to 
Representative Ed Whitfield, H. Rep. 114-685, 114th Cong. 2d Sess. 2 
(2016) (hereinafter Whitfield) (quoting Comm. on Standards of Official 
Conduct, In the Matter of Representative E.G. ``Bud'' Shuster, H. Rep. 
106-979, 106th Cong. 2d Sess. 113 (2000) (hereinafter Shuster)).
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    Pursuant to House Rule XI, clause 3(a)(2), which provides 
that the Committee may report to the House its findings and 
conclusions for final disposition of investigative matters 
after ``notice and hearing,'' the Committee provided 
Representative Kihuen with a copy of the ISC Report on October 
2, 2018, and offered him the opportunity to be heard orally 
and/or in writing by the full Committee. Representative Kihuen 
responded to the ISC's Report through a written submission and 
by appearing before the Committee on November 15, 2018. 
Representative Kihuen's written submission is attached as an 
appendix to this Report.\5\ The Committee considered the ISC's 
Report, as well as Representative Kihuen's submissions and 
appearance before the Committee, and agreed with the ISC that 
Representative Kihuen's actions violated clause 1 and clause 2 
of the Code of Official Conduct.
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    \5\See Appendix B.
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                      III. FINDINGS AND CONCLUSIONS

    Three women testified before the ISC that Representative 
Kihuen made unwanted physical and verbal advances towards them 
between 2013 and 2017.\6\ A Washington D.C. employee whose firm 
worked with Representative Kihuen's re-election campaign in 
2017 (``D.C. Firm Employee'') testified that Representative 
Kihuen made unwanted physical and verbal advances towards her 
including, among other things, touching her lower back and 
shoulders, repeatedly kissing her on the cheek, asking her 
personal questions such as did she live alone, commenting on 
her physique, and suggesting that he could help her career if 
she were willing to entertain his romantic interests.\7\ A 
staffer on Representative Kihuen's 2016 congressional campaign 
(``Campaign Staffer'') also testified that she was subjected to 
unwanted physical and verbal advances by Representative Kihuen 
during his 2016 congressional campaign, including, among other 
things, the touching of her thigh on two occasions, comments on 
how she looked, suggestions that Representative Kihuen would 
take her out if she did not work for him, a suggestion that she 
and Representative Kihuen should get a hotel room together, and 
questions regarding whether she would ever cheat on her 
boyfriend.\8\ Finally, a female lobbyist who worked with 
Representative Kihuen in Nevada between 2013 and 2015 (``Nevada 
Lobbyist'') testified before the ISC that Representative Kihuen 
made unwanted physical and verbal advances towards her 
including, among other things, sliding his hand under her dress 
and onto her thigh, grabbing her buttocks, messages asking her 
to come and sit on his lap, asking her what color her panties 
were, suggesting she would look good naked, and messages 
suggesting, through the use of emojis, that they make a sex 
tape together.\9\
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    \6\See generally ISC Report.
    \7\Id. at 3-9.
    \8\Id. at 9-15.
    \9\Id. at 15-20.
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    Representative Kihuen generally denied the allegations of 
unwanted advances.\10\ Despite Representative Kihuen's denials, 
each of the complainant's allegations were supported by 
documentary evidence and some of the alleged incidents were 
corroborated by third party witnesses.\11\ Furthermore, at 
least two outside entities were made aware of Campaign Staffer 
and D.C. Firm Employee's allegations and approached 
Representative Kihuen, and his campaign, about his behavior in 
2016 and 2017.\12\
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    \10\Some of the allegations were outside the Committee's 
jurisdiction. While the Committee cannot make a finding of a violation 
on the basis of conduct outside of its jurisdiction, the Committee can 
consider all relevant evidence. Representative Kihuen's denials made it 
particularly important to consider the allegations outside the 
Committee's jurisdiction.
    \11\ISC Report at 3-20.
    \12\Id. Representative Kihuen responded to the discussion regarding 
his behavior towards employees at the D.C. Firm by asking the D.C. Firm 
Partner confronting him if she would ever cheat on her husband. Id. at 
8-9.
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    Similarities in the allegations bolster the credibility of 
the complainants.\13\ Two unrelated women, Campaign Staffer and 
Nevada Lobbyist, both testified that Representative Kihuen 
touched their thighs while they were riding in a car with 
him.\14\ Two unrelated women, Campaign Staffer and a partner at 
the D.C. firm, both testified that Representative Kihuen asked 
them if they have ever or would ever cheat on their boyfriend 
or husband.\15\ Two unrelated women, D.C. Firm Employee and 
Nevada Lobbyist, testified and/or produced evidence that 
Representative Kihuen spoke to them about their career or 
career advancement in the course of hitting on them.\16\ 
Finally, two unrelated women, Campaign Staffer and Nevada 
Lobbyist, both testified that Representative Kihuen grabbed the 
back of their thigh or their buttocks while they were alone in 
an office with him.\17\
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    \13\Id. at 3-15.
    \14\Id.
    \15\Id.
    \16\Id.
    \17\Id.
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    The Committee has accepted the ISC's findings that 
``Representative Kihuen's complainants [are] credible based on 
their testimony and accompanying supporting evidence.''\18\ On 
November 15, 2018, the Committee voted to adopt the ISC's 
Findings and Conclusions and to release this public Report 
finding that Representative Kihuen violated clauses 1 and 2 of 
the Code of Official Conduct by making persistent and unwanted 
advances toward women who were required to interact with him as 
part of their professional responsibilities.
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    \18\Id. at 25.
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    House Rule XXIII, clause 1 states that ``[a] Member . . . 
of the House shall behave at all times in a manner that shall 
reflect creditably on the House,'' and clause 2 states that 
``[a] Member . . . shall adhere to the spirit and the letter of 
the Rules of the House.'' The Committee found that 
Representative Kihuen violated clause 1 by failing to behave in 
a manner that reflected creditably on the House, and violated 
clause 2 by violating the spirit of sexual harassment laws.\19\
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    \19\Id. at 23-25; 29-31 (providing a detailed analysis of 
prevailing sexual harassment laws and their applicability to 
Representative Kihuen's actions in the instant matter).
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    The Committee found that, while serving as a Member of 
Congress, Representative Kihuen engaged in unwanted physical 
contact by repeatedly kissing D.C. Firm Employee's cheek and 
touching her shoulders and lower back, and engaged in unwanted 
verbal advances by commenting on D.C. Firm Employee's physique, 
commenting on her appearance, inquiring about her relationship 
status, asking D.C. Firm Employee if she lived alone, 
commenting that he lived alone, and insinuating that he would 
help D.C. Firm Employee with her career in exchange for a 
romantic relationship.\20\ The Committee also found that 
Representative Kihuen behaved inappropriately when inquiring 
whether a partner at the D.C. Firm would cheat on her spouse 
during a conversation about Representative Kihuen's behavior 
towards women.\21\ The Committee agreed with the ISC that the 
aforementioned behavior by Representative Kihuen violated 
clause 1 and clause 2 of the Code of Official Conduct.\22\
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    \20\Id. at 29-30.
    \21\Id.
    \22\Representative Kihuen, through counsel, argues that the ISC, 
and by extension the Committee, ``does not have authority to find that 
the Congressman actually violated the Code of Official Conduct without 
adopting a Statement of Alleged Violation.'' This is incorrect. 
Committee Rule 19(f) states that ``[u]pon completion of the inquiry, an 
investigative subcommittee, by a majority vote of its members, may 
adopt a Statement of Alleged Violations if it determines that there is 
substantial reasons to believe that a violation of the Code of Official 
Conduct . . . has occurred.'' (emphasis added). Rule 19(f) leaves the 
decision whether to issue a Statement of Alleged Violation (``SAV''), 
and whether to seek harsher sanctions such as expulsion from the House, 
within the discretion of the ISC. Committee Rule 19(g) specifically 
requires an ISC to issue a report to the Committee with a summary of 
its findings and any appropriate recommendation if it does not adopt an 
SAV, and the ISC followed those procedural steps. The ISC properly 
exercised its discretion and chose not to issue a SAV, or seek harsher 
sanctions for Representative Kihuen's conduct, but chose the same 
procedural steps utilized by other ISCs in the past. See Whitfield; 
Comm. on Ethics, In the Matter of Allegations Relating to 
Representative Don Young, H. Rep. 113-487, 113th Cong. 2d Sess. (2014). 
Indeed, the Committee regularly finds Members to be in violation of the 
Code of Conduct without even impaneling an ISC, which is a necessary 
prerequisite to adopting an SAV. See Comm. on Ethics, In the Matter of 
Allegations Relating to Representative Luis V. Gutierrez, H. Rep. 115-
617, 115th Cong. 2d Sess. (2018); Comm. on Ethics, In the Matter of 
Allegations Relating to Representative Bobby L. Rush, H. Rep. 115-618, 
115th Cong. 2d Sess. (2018); Comm. on Ethics, In the Matter of 
Allegations Relating to Representative David McKinley, H. Rep. 114-795, 
114th Cong. 2d Sess. (2016).
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    Likewise, the Committee found that Representative Kihuen 
violated clauses 1 and 2 of the Code of Official Conduct by 
making unwanted physical and verbal advances towards Campaign 
Staffer. During his 2016 campaign for election to the House, 
Representative Kihuen made unwanted advances towards Campaign 
Staffer by placing his hand on her thigh while the two of them 
were driving back from a meeting, by grabbing the back of her 
thigh as she stood up to check his computer during call time, 
by telling her ``you look really good,'' and ``I would take you 
out if you didn't work for me,'' by suggesting that the two of 
them should get a room as they arrived at a hotel for a 
meeting, and by asking her if she ever cheated on her 
boyfriend.\23\ While the ISC chose not to ``address whether any 
of Representative Kihuen's behavior prior to being sworn in as 
a Member of the House falls within the ISC's jurisdiction,'' 
the Committee has repeatedly noted it has jurisdiction over 
``misconduct relating to a successful campaign for election to 
the House,''\24\ and Representative Kihuen's behavior towards 
Campaign Staffer, especially when coupled with his conduct as a 
sitting Member of the House, warrants reproval.
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    \23\ISC Report at 10-11.
    \24\Id. at 22-23; House Comm. on Standards of Official Conduct, In 
the Matter of Representative Jay C. Kim, H. Rep. 105-797, 105th Cong. 
2d Sess. (1998); House Comm. on Standards of Official Conduct, In the 
Matter of Representative Earl F. Hilliard, H. Rep. 107-130, 107th Cong. 
1st Sess. (2001) (hereinafter Hilliard); Statement of the Chairman and 
Ranking Member of the Committee on Ethics Regarding Representative 
Michael Grimm (Nov. 26, 2012).
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    The Committee has found similar conduct, i.e. unwanted 
advances towards an individual not employed by the Member, to 
be a violation of clause 1.\25\ As the Committee has previously 
stated, ``[c]lause 1 is the most comprehensive provision of the 
Code and was adopted, in part, so that the Committee, in 
applying the Code, would retain ``the ability to deal with any 
given act or accumulation of acts which, in the judgment of the 
committee, are severe enough to reflect discredit on the 
Congress.''\26\ While the ISC could have sought harsher 
sanctions for Representative Kihuen's violations, the ISC 
recommended and the Committee found that reproval is an 
appropriate sanction for the instant violations.\27\
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    \25\House Comm. on Standards of Official Conduct, In the Matter of 
Representative Gus Savage, H. Rep. 101-397, 101st Cong. 2d Sess. 14 
(1990) (finding a violation of then-Rule XLIII, clause 1, which 
utilized the same language now found at Rule XXIII, clause 1, based on 
unwanted sexual advances directed towards a Peace Corp volunteer who 
was not an employee of the House). Representative Kihuen seeks to 
distinguish the matter of Representative Gus Savage by arguing that the 
Committee did not find that Representative Savage violated a House Rule 
but instead found that his conduct was ``contrary to the standard of 
conduct expressed'' in the House Rules. Representative Kihuen's parsing 
of language is nonsensical and does not restrict the ISC or the 
Committee's authority to find Representative Kihuen in violation of 
applicable House Rules.
    \26\Shuster at 9; Hilliard at 12.
    \27\See House Rule XI, clause 3(a)(2) (establishing the Committee's 
investigative authority); Shuster at 113 (explaining that reproval by 
the Committee is ``intended to be a clear public statement of rebuke of 
a Member's conduct issued by a body of that Member's peers acting . . . 
on behalf of the House of Representatives.'').
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    Finally, the Committee reiterates an important point made 
in the ISC's Report. ``While Members are free to pursue 
romantic and intimate relationships outside of the House, there 
is an inherent power imbalance when Members romantically pursue 
individuals who are required to interact with Members as part 
of their professional responsibilities.''\28\ While 
Representative Kihuen repeatedly downplayed his actions when 
speaking with the ISC, in his written response to the ISC's 
Report, he apologized to the complainants and acknowledged that 
his actions may have been perceived in ways other than what he 
intended.\29\
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    \28\ISC Report at 30.
    \29\See Appendix B. While Representative Kihuen apologized for his 
actions, he also argues that the ISC's Report gives ``short shrift'' to 
statements by D.C. Firm Employee that she had a ``plan'' to get 
Representative Khuen to resign and ``blackmail'' him. The ISC Report 
cites to testimony and evidence by D.C. Firm Employee, submitted 
voluntarily, that she used ``poor'' and ``unfortunate'' wording by 
telling some friends and co-workers that she had a ``plan'' to get 
Representative Kihuen to resign and by referring to her decision to 
speak out as ``blackmail.'' See ISC Report at 8. D.C. Firm Employee 
explained that she was ``frustrated'' at Representative Kihuen's 
attempts to delegitimize the women speaking out against him, that she 
understands that her desire that Representative Kihuen resign was 
different than blackmail, and that she ``had no intention of 
blackmailing him.'' Id. The ISC considered all the evidence, questioned 
D.C. Firm Employee extensively on the topic, and ``found no evidence 
that D.C. Firm Employee's statements were anything more than an 
expression of her conflict about going public with allegations 
regarding Representative Kihuen's behavior towards her while he was a 
sitting Member of Congress.'' Id.
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    Service as an elected official involves power imbalances 
that Members must be careful not to exploit. Indeed, each of 
the complainants had potential career opportunities affected by 
their efforts to avoid continued advances by Representative 
Kihuen.\30\ Representative Kihuen now appears to better 
understand the effects that a power imbalance can have and the 
Committee joins Representative Kihuen in his hope that the 
``ISC investigation will make other Members of Congress 
cognizant of possible unintended consequences of their actions 
and will improve the working environment for all who interact 
with Members, whether as employees or not.''\31\
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    \30\See ISC Report at 7 (D.C. Firm Employee testifying regarding a 
decision to exclude her from a Las Vegas fundraiser in part because of 
Representative Kihuen's interest in her); id. at 14 (Campaign Staffer 
explaining that her decision to leave Representative Kihuen's campaign 
early, to avoid continued advances, may affect future employment 
opportunities); id. at 20 (Nevada Lobbyist explaining that she chose to 
forego social events that could have helped her professional 
development in part to avoid Representative Kihuen's advances).
    \31\Appendix B.
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            IV. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(c)

    The Committee made no special oversight findings in this 
Report. No budget statement is submitted. No funding is 
authorized by any measure in this Report.



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