A long-awaited report on the Wyoming National Guard’s handling of sexual harassment and assault highlights multiple areas of concern and recommends several fixes.
Gov. Mark Gordon released the assessment last week, 18 months after Wyoming Adjutant General Greg Porter requested outside assistance with a review. The process followed complaints from whistleblowers who said the guard systematically failed to support victims or hold perpetrators accountable for workplace transgressions.
“The report shows that the public can have full confidence in the Guard, and that while there are processes and procedures that need adjustment, the culture of the Guard is supportive of changes that improve effectiveness and mission capability,” Gordon said in a press release.
At a meeting of the Legislature’s Joint Transportation, Highways & Military Affairs Committee Thursday, lawmakers heard calls for further action and concerns that the report is too narrowly focused.
Responding to a troubling history
The Equal Employment Opportunity Commission put the Wyoming National Guard on notice three times in 10 years for workplace hostility, including the mishandling of sexual harassment.
Those documented complaints were only the tip of the iceberg; a toxic culture lay beneath, rife with retaliation against those who voiced concerns, whistleblowers alleged in an Oct. 7, 2021, WyoFile story.
Victims had also spoken out publicly. Rachel Bennett and Jennifer Rigg shared their allegations of mistreatment and retaliation at press conferences hosted by Sen. Anthony Bouchard (R-Cheyenne) on the Statehouse lawn in August 2021.
Those stories got the attention of the Joint Military Affairs Committee, which discussed possible reforms.
Months later, during the 2022 Legislative session, lawmakers passed several bills to address harassment and assault in the guard.
In the background, Gordon was making arrangements to review the guard’s policies and procedures pertaining to harassment and assault, as well as diversity and inclusion.
Conversations between the governor, members of his cabinet, lawmakers and the guard about the possibility of a review started in October shortly after WyoFile published its investigation, according to emails obtained through a public records request.
On Oct. 15, 2021, Gordon called Sen. Affie Ellis (R-Cheyenne) — who was tied to the issue through her constituents — to discuss the coverage, and to inform her that he was considering the formation of an executive-led investigation headed by Patricia Bach, director of the Wyoming Department of Administration and Information, and Robin Cooley, director of the Wyoming Department of Workforce Services, according to an email from Ellis to Bach and Cooley on Dec. 9, 2021.
Ellis — who was seeking an update on the review from Bach and Cooley because the governor had yet to announce it publicly — also expressed reservations about members of the governor’s cabinet reviewing a department he oversees.
“Although I hold both of you in the highest regard, upon further reflection from my conversation with the Governor in mid-October, I do think that an investigation led by two cabinet officials who serve at the pleasure of the Governor might not be perceived by the public as being completely independent or objective, particularly if the investigation affirms the status quo,” she said in her email.
In response to similar concerns from Bennett — one of the whistleblowers — the governor’s chief of staff Betsy Anderson responded that Gordon had instructed Bach and Cooley “to provide an honest and objective assessment as anything less would not serve to achieve his goal of ensuring a fair and safe work environment free of sexual discrimination and harassment for all members of the military.
“Therefore, whatever the outcome of this investigation, it will be an accurate finding of what is happening with the military policy and procedure — not only on paper but also in practice,” Anderson wrote in the email obtained by WyoFile.
On Dec. 16, 2021, Gordon — who also serves as the guard’s commander-in-chief — formally initiated the review under Bach and Cooley’s direction.
No deadline was set because the governor wanted “to ensure the directors were given enough time to conduct a thorough review, given their other responsibilities,” the governor’s spokesperson Michael Pearlman told WyoFile.
Nearly a year and a half later, on March 17, Bach and Cooley submitted the report to Gordon, according to email records. General Porter reviewed it and issued a memo in response on May 1. It and the report were released to the public last week.
“It was necessary to allow implementation of the [new] legislation with some time to determine its effectiveness before issuing its final recommendations,” the assessment team explained in a footnote.
In a press release announcing the report, Gordon thanked Bach and Cooley for “their commitment to being independent, thorough and transparent in preparing this assessment.”
The final report does not detail steps taken to ensure independence or to address conflicts of interest. Bach and Cooley both declined WyoFile’s interview requests.
“Governor Gordon has complete confidence in the impartiality of the two members of his Cabinet he appointed to complete this review, both of whom have backgrounds in employment law and human resources and no direct connection to the Wyoming Military Department,” Michael Pearlman, the governor’s spokesperson, told WyoFile.
Bach and Cooley also enlisted Russell Webb, with A&I, and Liz Gagen with DWS to join the assessment team. Their review identifies five main areas of concern — including confusion about the reporting process, inconsistencies in how complaints are handled and fear of retaliation — as well as recommendations.
The team interviewed 12 “individuals who had filed complaints, along with the various personnel tasked with handling the complaints, to determine what processes were going well and where there may be concerns,” the report said.
“In response to questions about the reporting process in the interviews, almost every person interviewed had a different response to the appropriate process, or they simply did not know what the appropriate process required,” the report said. “Individuals interviewed that had filed complaints did not believe their claims were being taken seriously; they did not trust the system believing they were getting the ‘run around’ to delay the claim beyond the relevant time frames; and they felt ignored or dismissed.”
The guard was already working on its reporting process, according to Porter, its ranking officer. In 2022 a new State Equal Employment Manager was hired to serve “as a single point to report any discrimination including any sexual harassment allegations,” Porter said in his memo responding to the report.
The assessment team also questioned the guard’s desire to address sexual harassment at the lowest level of command where, without oversight, problematic behavior could go unaddressed.
“We have always desired Commanders and Leaders to address inappropriate comments and other less severe forms of harassing behaviors of any kind at the lowest possible level to ensure the situation is dealt with immediately and to empower our supervisors to act to create a harassment free work area,” Porter explained in his response.
The report suggests that if the guard wants to maintain this approach, “It must be done in a more strategic and defined manner, with more specific consequences, so there are not different response levels based on the supervisor or worse, no response based on the supervisors, especially given the recognition that left unaddressed, these behaviors can worsen.”
Interviewees shared that the lengthy and complex reporting process was discouraging and that they were concerned about deliberate efforts to silence victims.
“We heard many comments about retaliation, including individuals afraid to report because of retaliation and individuals that finally left their employment because of the retaliation,” the report read.
“I have told our members and employees in the past and I reassert here that if anyone believes they have been retaliated against, please talk to Command Inspector General,” Porter wrote in his response.
The assessment team called more generally for clearer and more sensitive communication, drawing attention to several instances of language that might discourage victims from reporting.
A 2021 guard report calling for “honest and accurate reporting,” for example, could send the message that “the reporting party is less than honest or accurate, although that is likely not the intent of this language,” according to the assessment team.
Investigators also detected inadvertent victim blaming.
“Although it may not have been the intent, an example where this can be inferred is in the FY2021 Report on sexual assault, where it states that one trend is that in 83% of the cases, the victims used alcohol. Similarly, the report indicated a trend that in 83% of the cases, the perpetrator was suspected of having used alcohol,” the report said.
Assessors noted the use of the words “the victims used alcohol” versus “perpetrator was suspected to have used alcohol,” and suggested that “reporting the victim’s use of alcohol infers that the victim is partially to blame, and reporting the perpetrator’s use of alcohol may infer the perpetrator is not to blame based on alcoholic intake.”
Porter disagreed saying “we believe we owe it to our members to provide them with information about statistical factors involving sexual assault so they can be situationally aware and hopefully avoid situations that put them at higher risk.”
The report included optimism about 2022 legislation establishing a position at DWS to assist the guard with discrimination claims made by federally employed technicians — a class of workers who often fall into a legal gray area.
Within a year of the program’s implementation, “the DWS Labor Standards Division has received five informal complaints from employees of the [guard],” however, the report notes, the program has been poorly promoted.
“A search of the [guard’s] websites and mobile apps does not highlight or even mention this process to ensure it is widely utilized and well-known with military personnel,” the report said.
Increased access to information and improvements to the guard’s website was also one of the assessment team’s general recommendations.
“Governor Gordon did not intend the External Assessment as a re-investigation of any prior complaints or claims or as a method of directing blame toward any one or more person(s),” the introduction of the report reads.
That apparent disinterest in holding individuals to account didn’t sit well with all stakeholders.
“I expected an investigation to identify bad actors and bad behavior resulting in administrative discipline for some and involuntary discharge for others,” Marilyn Burden told the Joint Military Affairs Committee Thursday.
Burden served in the Wyoming Air National Guard for 17 years, but left in 2018 to get away from what she described as the guard’s “toxic culture.”
While deeply grateful to Bach and Cooley for the recommendations in the report, Burden still wants to know, “How do we ensure the Adjutant General is holding all his subordinate commanders accountable for illegal, immoral and unethical behavior?”
Access to justice and accountability in the military is paramount, Burden told WyoFile, because if a member of the military doesn’t like their boss or doesn’t feel safe, they can’t just walk off the job.
“If you signed a contract as an enlisted member for four to six years, and they’re complete jerks to you at year one, they own you for another three to five years,” Burden said. Because it can be hard to move units or change squadrons, Burden said, guard members need trusted mechanisms to address abuses of power.
While the 18-month timeline allowed the report to include reflections on the implementation of new legislation meant to improve guard practices, Burden told WyoFile she was frustrated the review process took so long.
Like teaching kids, it’s more effective to correct them on the spot, Burden said, “but I’m super excited that it actually came out.”
Now Burden is waiting to see if the guard will follow through on the recommendations.
“The Governor will be following up with the WYMD to monitor and assess how they will act on the recommendations contained in the review,” Pearlman, the governor’s spokesperson, said.