Inquiry: Sexual Comments Not Hostile

Bernalillo County Commissioner Michael Wiener offended a county staffer and other elected officials with “inappropriate” sexual comments, but his behavior didn’t meet the legal definition of a “hostile work environment.”

That was the county’s conclusion based on an independent investigation after a female county staff member alleged Wiener – whose jokes have landed him in hot water before – had sexually harassed her.

Wiener, for his part, said the matter was a misunderstanding and that “it was never my intention to offend anyone. I would like to offer a sincere apology to those individuals who were offended by something I said,” according to a statement released by the county.

The investigative report was reviewed by a three-person panel of county employees, who concluded Wiener’s comments were ” ‘inappropriate,’ but did not violate any county policy,” the county said.

The report centers on a complaint by a female county staff member, Kelly Smyer, but also includes comments from two elected officials about offensive comments Wiener made.

This is not the first time Wiener’s humor has been called inappropriate. In at least two instances, emails he has sent have sparked controversy – one when he signed his name Rodney King and another titled “Sex in the Shower.”

In Smyer’s complaint, she said Wiener stood in the doorway to her office and said “looking good.” His tone of voice and the way he looked at her made Smyer think he was “talking about her physical appearance,” according to the report.

Wiener maintains he was talking about the office’s decorations and fresh paint. It hadn’t been occupied by anyone previously, he said.

“It was simply a misunderstanding,” he told the Journal in an interview last week.

According to the investigative report, Smyer said that on another occasion, Wiener told her an offensive joke, a pun on his name and the last name of Commissioner Wayne Johnson: “Did you know that the (County Commission) now has a Wiener and a Johnson on it?”

Wiener said later that he was talking about the different kinds of hot dogs, not male genitalia, and that he was just repeating a joke he’d heard from another commissioner.

Smyer, who works as an assistant to Commissioner Michelle Lujan Grisham, also said she overheard Wiener, at a different time, loudly complaining that he couldn’t say something for fear of being accused of creating a hostile work environment. She took that to mean Wiener was “belittling” her and not taking seriously the issue.

Wiener, meanwhile, issued a statement Tuesday thanking the county for “conducting a thorough investigation. The conclusion is that I did not violate any county policies.”

The investigative report, compiled by Strategic Solutions, notes that, as an elected official, Wiener is exempt from Title VII of the Civil Rights Act, which deals with discrimination.

The report also said Wiener’s conduct “does not meet the legal definition of a hostile work environment.”

But the report does note that Wiener’s jokes offended more than just the one staff member.

County Clerk Maggie Toulouse Oliver and Commissioner Johnson reported hearing Wiener make a joke about a woman being raped by multiple men. Oliver told investigators she was shocked and got up and left. Johnson advised Wiener to think about whether he really wanted to finish the joke.

On another occasion, Oliver said, Wiener leaned over and made a sexual joke during a commission meeting. There was talk about changing positions on a certain issue, and Wiener told her, “I don’t care what position we take, as long as doggy style is included.”

Wiener said in a written statement released by the county that he recently underwent training “regarding our obligations as elected officials. Based on that training and this experience, I will use better discretion and judgment in the future.”

In an interview with the Journal last week, Wiener said he likes to joke around and some people can be sensitive. He said the atmosphere changed when Commissioner Grisham took office in January.

“It’s not a fun place to work anymore,” he said.

Grisham said Tuesday that Wiener’s comment about her is an “irrelevant, ridiculous statement. No one’s ever accused me of having a lack of sense of humor in my life.”

Commissioners are supposed to focus on working for the public, not “entertaining each other,” Grisham said.

She added that Smyer is credible, trustworthy and a capable employee.

Wiener has a controversial history. The state Democratic Party demanded that he resign last year after forwarding a racist joke in an email.

The forwarded message – titled “Sex in the Shower” – suggesting that most African-Americans are either in prison or have been. He sent the message from his private email account to the government accounts of two other county officials.

Wiener later said he doesn’t have a “racist bone in my body.”

Wiener also faced criticism last year for other emails. In one message, he referred to a Santa Fe man as “VERY Hispanic and NOT very sophisticated – very very BLUE Collar.” He signed another email “Commissioner Rodney King” after quoting King – “Can we all get along?” – in a message about a neighborhood dispute over loud music.

King was a black man beaten by Los Angeles police officers in 1991.

— This article appeared on page A1 of the Albuquerque Journal

Cutline – WIENER: Commissioner says he likes to joke around