At First, Eckert Seamans Was Only Investigating The Sexual Assault Charge Against Daylin Leach. But Then Things Changed.
Part One
The Senate Democrats said, in January 2019, that the reason why they hired Eckert Seamans was to investigate Cara Taylor’s charge that Daylin Leach sexually assaulted her in 1991. There was no other reason given at that time as to why they had hired Eckert Seamans.
Eight months later, hundreds of witnesses interviewed, hundreds of thousands of taxpayer dollars expended on legal fees –
The Scope of the Eckert Seamans Investigation was completely different than what had originally been reported. What happened?
The report was no longer solely focused the Cara Tara Allegations. According to Eckert Seamans, The primary focus of the investigation was the adherence of Senator Leach to the applicable law and Senate policies regarding workplace harassment (detailed, infra) while serving as a member of the Pennsylvania Senate.
The “Final Report” released by Eckert Seamans in September, 2019, was 43 pages long. References to the Taylor allegation only appear on nine of those pages.
Why was the very nature of the investigation that was reported in September of 2019, so completely different than the one that was announced in January of 2019?
Could it be that the scope of the investigation changed after Eckert Seamans discovered this about Cara Taylor’s allegations?
There were, however, certain factual inconsistencies in Ms. Taylor’s recollection of events. For example, Ms. Taylor’s private criminal complaint alleges that in late summer 1991, Senator Leach asked her to get pregnant so that he could receive a trial continuance. It appears, however, that the case was not listed for trial at this time. A trial attachment order was not filed until January 15, 1992, attaching the case for criminal trial week commencing February 18, 1992. A subsequent trial attachment order was filed on March 3, 1992, attaching the case for trial week commencing March 16, 1992. An application for postponement was first filed on March 13, 1992, attaching the case for criminal trial the week commencing June 1, 1992. Further, Ms. Taylor’s son was born on March 20, 1992, as such, a normal length pregnancy would have placed conception in late June, 1991, or early summer. Moreover, Ms. Taylor testified on June 10, 1992, and confirmed in her interview, that her pregnancy lasted longer than normal at ten and one-half months, placing her conception date in perhaps May 1991 or possibly even in April 1991. It is not clear that Senator Leach had any contact with Ms. Speth or Ms. Taylor at that time. As the facts are alleged by Ms. Taylor, it does not appear that this claim could be factually accurate. In addition, during Ms. Taylor’s interview, she purported to describe Senator Leach’s apartment in detail, including descriptions of his furniture. Ms. Taylor’s descriptions do not match Senator Leach’s descriptions. While Senator Leach provided the investigators photographic evidence to support his descriptions, the investigators are unable to positively confirm that the photos were from the time period or the apartment in question. Additionally, Ms. Taylor alleges in her private criminal complaint that public defender, Karen Schular, “was made aware of what Daylin did to me and not only did she choose to ignore the information but she then didn’t even bother to show up on the day I plead guilty.” However, during Ms. Taylor’s interview, she was adamant that she did not tell Attorney Schular about the allegations. Of note, Ms. Taylor failed to sign her private criminal complaint under penalty of perjury. While Ms. Taylor contends that the District Attorney’s office would not permit her to sign the private criminal complaint when she provided it to that office, she failed to explain why this would have prevented her from signing it when she distributed it to varying elected officials at the Capitol.
Or maybe the scope of the investigation from the start was not only about Cara Taylors allegation of a sexual assault in 1991? Maybe from day one, Eckert Seamans was also trying to determine if Leach had violated “Senate policies regarding workplace harassment?” Maybe for whatever reason, when Costa first talked to the Inquirer and Penn Live about why the Senate Democrats had hired Eckert Seamans, he forgot to mention, or didn’t think it was important enough to mention, that there was another, broader aspect to the investigation than just Cara Taylor’s allegation?
Or maybe after talking to her at length, it became apparent that you could drive a Mack Truck through the holes in Taylor’s story; and at that point somebody decided that the scope of the investigation should be changed?
Whoever knows the answer to this question, has not, and probably won’t step forward to tell us what actually happened. And even if that person does step forward, her or his motives and credibility might be at this point, somewhat suspect.
Part 2
In the wake of the Eckert Seamans Report, a multitude of high-profile Democrats in Montgomery County, Delaware County and across the state and even Bernie Sanders; have either called for Leach to resign and/or have endorsed his opponent, Amanda Cappelletti, in Tuesday’s Democratic Primary. What did they see in that report that compelled them to call for Leach’s removal from the Senate?
Much has been said and written about the allegations made against Leach in the December 17, 2017 Inquirer article. Eckert Seamans looked at each of those allegations. And they also looked at allegations against Leach that came after the Inquirer article.
Allegation Number 1
An unnamed intern/employee was nicknamed “thong girl” because her underwear had once inadvertently become visible.
Conclusion: Applying federal discrimination law to these facts, this comment, while unquestionably immature and unprofessional, did not rise to level of actionable quid pro quo sexual harassment since quid pro quo sexual harassment requires unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment. There is no evidence that the use of this nickname was connected with any such conduct.
Allegation Number 2
In February 2015, a campaign staffer met Senator Leach at the Federal Taphouse during a SDCC event where he slid his hand down her back and “touched [her] butt.” After she yelled at Senator Leach, one of his aids advised her that her response was inappropriate. About a month later, while employed as a Caucus employee, Senator Leach “approached her from behind and tickled her torso while she sat at her desk.” The incident was reported to her boss and she was interviewed by a human resources officer. She stated that “she felt as if she had been discouraged from filing a formal complaint.”
Conclusion: Despite the allegation included in the INQUIRER article, further interviews with all parties involved seem to confirm that Senator Leach did not touch the former campaign staffer/Caucus employee’s rear end. The employee’s version of events clarified that she “stepped away” before any such contact could have, or did, occur but, also, that she was upset with the Senator’s conduct and expressed her feelings.
Allegation Number 3
While a former District Office staff employee was walking past the Senator in an open area of the office, his hand may have brushed her butt.
Conclusion: Without having the opportunity to interview the employee, we are unable to conclude whether the alleged contact, if any, with respect to this employee was either appropriate or inappropriate. As such, without more, we are unable to conclude that the alleged physical contact would be a basis for either a quid pro quo or hostile work environment sexual harassment claim. At the time it was reported, the employee could not conclusively determine if she had been touched at all or if the contact was intentional or inadvertent (Emphasis added).
Allegation Number 4
In February 2016, a campaign staffer reported that the at a political fundraiser she spoke with Senator Leach and explained to him that she had once lived in Beirut, Lebanon and could speak Arabic. During that conversation, Senator Leach “held on to her upper arm ‘for an uncomfortable amount of time,’ maybe 10 seconds or so.” “It seemed harmless,” but then she received an email from Senator Leach later that evening. The subject line read “Hey there,” and contained a short message in Arabic, “How wonderful it was to talk to you today,” followed by a reference to some petitions. The next morning, Senator Leach approached her at the check-in table, “sat next to her, discussed his history of fighting for women, and suggested he might be able to help her find a job.” And, then, “he grabbed [her] thigh, almost to punctuate his point with cruel irony.”
Conclusion: We are unable to conclude that the physical contact at the February 8, 2016 encounter was a violation of either federal law or Senate policy. In the first instance, neither incident was a Senate event as campaign organizations and the SDCC operate outside of Senate control. Placing that aside, with respect to the first instance of physical contact on February 8, 2016, the Senator’s action in placing his arm around the individual’s shoulders is not, in and of itself, evidence of quid pro quo sexual harassment. There was no allegation from the witness that the Senator’s action—while personally intrusive to her—was intended in a sexual manner or in furtherance of an explicit or implicit request for sexual favors. Further, the Senator’s email in Arabic was not a communication that could be described as evidence of quid pro quo sexual harassment. We are also unable to conclude that this contact was sufficiently severe or pervasive to rise to the level of sexual harassment under a hostile work environment theory. As to the second physical contact at the February 9, 2016 event, we are also unable to conclude that this encounter was a violation of federal law. The witness indicated that the Senator placed his hand on her thigh, closer to her knee, but he did not squeeze it. This contact, while personally intrusive to the campaign staffer, was not described as sexual in nature or as an explicit or implicit request for sexual favors during our interview. Because the contact was not described as sexually
Allegation Number 5
A video clip that could be classified as pornographic was shown in Senator Leach’s District Office.
Conclusion: Since the employee declined to participate in any interview and since other witnesses had no first-hand knowledge of what occurred other than rumor, we are constrained to credit the evidence offered by people working in the office who had firsthand knowledge of the incident. Those recollections indicate that it was the former employee that insisted that the Senator view the video in question.
Allegation Number 6
While playing basketball in Senator Leach’s office in 2014, a former SDCC employee alleges Senator Leach placed his hands on her back and moved them up and down.
Conclusion: As an initial observation, as an SDCC employee, the ex-employee would be outside the purview of the Senate. In any event, as noted below, we are unable to conclude that the behavior constituted quid pro quo or hostile work environment sexual harassment. September 18, 2019 26 The action described herein does not fit within the definition of quid pro quo sexual harassment as it was neither explicitly or implicitly a request for sexual favors or physical contact that was a term or condition of employment for this individual. In addition, in order to maintain a claim of sexual harassment based on a quid pro quo theory, a plaintiff has to demonstrate that she was detrimentally affected. Here, the individual did not suffer any adverse employment action.
Allegation Number 7
Campaign Working Environment The remaining allegations from the December 17, 2017 INQUIRER article, and a follow up article, concerned allegations of inappropriate comments/jokes and inappropriate touching that occurred during campaign activities. The allegations related to inappropriate comments/jokes and inappropriate touching are addressed separately below. These allegations do not follow a strict timeline and relate to allegations which generally occurred in 2008 during the Senator’s campaign for his present seat and in 2012.
Conclusion: Inappropriate Comments/Jokes Taken individually, none of the comments or jokes described above rose to the level of actionable sexual harassment under either a quid pro quo or hostile work environment theory. In addition, given the totality of the circumstances, including the frequency, severity, and nature of the conduct, we cannot conclude the behavior, if true, reasonably interfered with an employee’s work performance. And, it is also important to note that these comments and jokes, as reported to us, occurred in the Senator’s campaign office, not his District or Senate offices. Taken together, conduct such as this which includes jokes/comments of an immature and unprofessional nature, while not directly sexual, but which contain a sexual context, could work together to form the basis of a hostile work environment claim. While no such claim arose as a result of the particular comments/jokes here, such a claim could arise if such conduct would continue unabated.
Conclusion: Inappropriate touching While one can conclude that there are generalized rumors of alleged inappropriate touching, those rumors could not be substantiated by specific factual accounts. As such, we have focused on those allegations that were documented and not apocryphal. The only specific allegations involving any alleged inappropriate touching which this investigation can corroborate through witnesses available involved individuals who did not work for the Senator directly and had only isolated encounters with the Senator as described in Allegation numbers 2 and 4 above.
Allegations 8-11 which are summarized below, were not part of the December, 2017 Inquirer article about Leach.
Allegation Number 8
Caucus Working Environment
No specific claims regarding Senator Leach’s District or Capitol office working environment were identified in the INQUIRER article or subsequent media reporting. As discussed above, two incidents at the District Office were identified during this investigation. Expanding more broadly, the witnesses’ general descriptions of the District Office working environment are summarized below.
Conclusion: When compared to office environments which have resulted in findings of a hostile work environment based on gender as set forth in reported cases, we are, by comparison, unable to conclude that the working environment in the Caucus (and in particular Senator Leach’s District Office) is one that is permeated with sex discrimination or sexual harassment. It is fair to observe, however, that case law does not require a complainant to formally announce the unwelcome nature of the conduct to which one is subjected. Further, the choice to discontinue any “scrum” in which jokes are discussed is wise inasmuch as it avoids the possibility of the claim of compulsion which, unabated, may serve to form the basis of a potential hostile work environment claim.
Allegation Number 9
Senator Leach has engaged in inappropriate conduct towards colleagues in the Senate.
Conclusion: The conduct reported by Senator Muth and Senator Collett qualifies as unprofessional and inappropriate as far as one would expect colleagues to treat one another, but none of the allegations involved claims of sexual harassment under any one of the three theories discussed herein. This is, in part, because the Senators who detailed the issues that they have previously had with Senator Leach are not “employees” under federal anti-discrimination law. This is consistent with the general proposition that employment law requires a change in one’s terms or conditions of employment by virtue of the use of power agency by a superior or co-worker. Here, one Senator cannot fire, cannot demote, and cannot otherwise change the fact that a fellow elected representative has the full power accorded to him or her while serving as a member of the Senate and it is only the Senate as a body—and not a fellow Senator—that can change one’s terms or conditions as an elected representative using the provisions set forth in Senate rules as well as the Pennsylvania Constitution. This does not excuse Senator Leach’s actions, if they occurred as described. It simply means that they cannot form the basis of sexual harassment under any theory. The separate issue of whether or not those actions would constitute conduct that violates applicable Senate policy is not something on which we can opine as it is the Senate that determines the scope and coverage of its rules and policies.
Allegation Number 10
The real issue is the culture at the Capitol building.
Conclusion: While this investigation’s scope was limited to investigating certain allegations made against Senator Leach, the culture within the Senate is a relevant consideration. If accurate, this type of culture, a culture which the #Me Too Movement has aimed at toppling, indisputably permits gender disparities which should be addressed.
Allegation Number 11
Cara Taylor alleged that in 1991, while the private citizen Leach was defending her mother in an attempted murder trial, he sexually assaulted her in his apartment
Conclusion: Regarding the allegations raised by Cara Taylor, she has raised serious allegations. However, her allegations are also 28 years old, contested charges relying mainly on the resolution of credibility as between two people. There are no or few witnesses and the documentary evidence (such as the PCRA transcript in which Ms. Speth withdraws any allegation of wrongdoing by Mr. Leach) does not directly resolve this credibility dispute. Additionally, none of these allegations occurred while Mr. Leach was a member of the Senate. While this investigation tried to speak to as many individuals as possible regarding these allegations, we ultimately find that the credibility disputes occasioned by the passage of time, among other things, may only be resolved through a contested hearing held under oath where witnesses are subject to either criminal or civil process, rules and sanctions. As noted above, both Ms. Taylor and Senator Leach were passionate and adamant about their respective recollections of the time period in question. While the investigators made every effort to attempt to corroborate either Ms. Taylor’s or Senator Leach’s version of events, we were unable to uncover any facts or information to permit us to believe one version of events over the other. Accordingly, without diminishing the beliefs of either party to this dispute, we cannot form any conclusion based on the facts at hand.
Tom Wolf’s and Jay Costa’s Roles in All This
On the same day that Inquirer reported on Leach’s alleged inappropriate behavior, Governor Tom Wolf called for his resignation, and issued this statement. This disturbing behavior is absolutely unacceptable. Senator Leach should resign. While he has been a leader on important policy issues, this conduct cannot be excused.
As I have said previously, this is not a partisan issue. The lack of adequate structure for victims to report this type of behavior and feel protected is inexcusable, and underscores that Harrisburg’s culture must change.
Leaders in the General Assembly, Republican and Democrat, must commit to real reform that protects victims.
At the same time that Wolf called for Leach’s resignation, Costa, according to Penn Live, “had committed on Sunday to taking a fresh look at the complaints against Leach and how they were handled.”
That was in December of 2017. Wolf had learned all that he needed to know from the Inquirer article, and made his decision to call for Leach’s resignation, without the benefit of hearing Leach’s side of the story. Costa meanwhile, had nothing to say (at least nothing that was reported in the media) about Leach, until 13 months later, after Cara Taylor decided to dredge up her 28-year-old charges about how Leach allegedly had sexually assaulted her. And even then, Costa was mum about all of the allegations against Leach that the Inquirer had reported on.
In June of 2019, members of the Senate Democratic Caucus were given a copy of a Power Point slide show, which was described as a summary of Eckert Seaman’s “Preliminary Report.”
“Preliminary Report” is quotations because Leach alleges that what was described as a “Preliminary Report,” didn’t become a preliminary report until certain members of the senate determined that it didn’t sufficiently cast enough negative light on him; and that a revised version of what Eckert Seamans had in June of 2019, considered to just be “the report,” was not made public until September of 2019, and was then described as “The Final Report.”
At the time (June, 2019) Eckert Seamans created its Power Point about the Leach Investigation (which by that time no longer just focused on Cara Taylor), PennLive.com reported the following:
Leach told PennLive on Thursday that Miller left the document with him and went on to brief the Senate Democratic caucus at large. The lawmaker was initially told he would speak to his colleagues after the presentation, he said, but that never happened.
Instead, a representative of Costa’s office later came to ask for the document back and Leach refused, the lawmaker said. Costa then reportedly told Leach that Eckert Seamans would conduct several more interviews. According to Leach, Costa asked him not to make the slideshow summary public.
“[Costa] said, ‘If you release this report, we’ll go after you with everything we have,’ ” he said.
Leach said his decision to release the document anyway spurred Costa’s sudden call for his resignation, describing the situation as a cover-up.
“He asked me to go along with this utter fabrication,” Leach said.
The lawmaker added: “You can’t change the standard because you don’t like the result. I’ve never seen this thing where you don’t like the result [so] you investigate again.”
Costa spokeswoman Brittany Crampsie declined further comment about the situation, the slideshow summary or Leach’s allegations against Costa.