By PETER WONG
Oregon Capital Bureau
SALEM -- Mike Nearman became the first state legislator to be expelled in Oregon's 162 years of statehood for his part in aiding anti-lockdown protesters, some of them armed, to breach the closed Capitol during a Dec. 21 special session of the Legislature.
On a 59-1 vote Thursday night, June 10, the House concluded that Nearman engaged in "disorderly behavior" when he opened a door and allowed some protesters to enter the Capitol's northwest vestibule. Police eventually ejected them and blocked their second attempt to breach a different entrance to the Capitol later that day. Several people were arrested.
Nearman was the lone vote against his expulsion. The other 22 Republicans joined the 37 Democrats to expel him.
Some protesters gathered near one of the Capitol entrances as the House debated for 45 minutes.
One of them attempted to break down a door, but it has a metal cover that shields the glass.
Nearman was identified through video surveillance footage during an investigation by Oregon State Police. A second video surfaced last week during which Nearman, five days before the Dec. 21 session, advised potential protesters how to reach him via text message and "someone" would allow them to enter the Capitol.
House Speaker Tina Kotek, a Democrat from Portland who appointed a special committee to consider the expulsion resolution she introduced earlier in the week, had this to say afterward: "The facts are clear that Mr. Nearman unapologetically coordinated and planned a breach of the Oregon State Capitol. His actions were blatant and deliberate, and he has shown no remorse for jeopardizing the safety of every person in the Capitol that day.
"Given the extraordinary circumstances, this was the only reasonable path forward. Safety — for the public, building employees, legislators and their staff — continues to be my top priority in managing this extraordinary session."
The Oregon Constitution requires a two-thirds majority (40) for expulsion.
Pandemic precedes closure
"It is impossible to overstate the reason we are here tonight," Rep. Paul Holvey, a Democrat from Eugene, said in presenting the resolution.
He led the special committee, equally divided between Democrats and Republicans, that recommended Nearman's expulsion.
The Capitol has been closed to the public since March 18, 2020, at the onset of the coronavirus pandemic. Votes of the full House and Senate have been taken in person, but committee meetings have been conducted virtually.
Earlier Thursday, when the special committee met for about two hours, Nearman read a statement but said he would decline to answer questions based on his lawyer's advice. He faces two criminal charges in Marion County Circuit Court that are unaffected by the House vote.
"I know you have all made your decision. This has not been a fair process," he said.
He instead laid blame on Kotek, Senate President Peter Courtney, and the six members of the special committee, among others for the Capitol closure.
"The easy thing is to expel me," he said. "I suspect that is what you are going to do. But to be clear, I am going to be expelled for letting the public into the public's building."
He made similar arguments Thursday night during a 3-minute speech to the full House. He mentioned the constitutional requirement that legislative proceedings be open, but the Oregon Constitution allows the Legislature to define how it will do so. He said while other public places have gradually reopened — mostly because COVID-19 vaccinations have increased and infection rates have dropped — the Capitol remains closed.
"You can let this be tried in the media and come down to summary judgment on the floor, like we are doing here," he said. "You can choose to skip the House committee and just do it now. There is no reason to hear both sides and have at least something resembling due process."
Legislative Counsel Dexter Johnson, in response to a question by Rep. Duane Stark, R-Grants Pass, advised lawmakers that the closure of the Capitol during the pandemic "is not an arbitrary or unreasonable decision, and does not go beyond what is reasonably necessary to enable the Legislature to make urgent policy decisions pertaining to the state's response to the virus and other urgent matters."
What others said
Holvey said Nearman could have gone to court to challenge the closure instead of taking matters into his own hands.
"The facts speak for themselves," Majority Leader Barbara Smith Warner, D-Portland, said in the committee hearing. "Rep. Nearman hiding behind the Constitution to justify these reckless and dangerous actions was deeply upsetting to me as an individual."
Rep. Andrea Salinas, D-Lake Oswego, said the breach endangered not only lawmakers but also staffers as they sought to pass legislation and funding dealing with the pandemic and the Labor Day wildfires.
"While many of us were working across the aisle to deliver relief for Oregonians who were most impacted by the pandemic and wildfires, it was upsetting to learn that Rep. Nearman was planning and coordinating an attack on our Capitol," Salinas, also a member of the special committee, said during the House debate. "He not only put our safety in jeopardy, he put all of this work to help Oregonians at risk. The trauma of that day will not leave with Rep. Nearman."
Nearman's case was originally before the House Committee on Conduct, which received an independent investigator's report that concluded "more likely than not" that Nearman aided the protesters.
Rep. Julie Fahey, a Democrat from Eugene who is co-leader of that panel, said Nearman was given opportunities in the special committee and in the full House to speak on his own behalf. The special committee received more than 300 written statements, most of them urging Nearman's expulsion.
Only a handful of people testified in addition to Nearman. Among them were Yamhill County Commissioner Casey Kulla and Danny Jaffer of Independence, the 2018 Democratic nominee against Nearman, who urged the committee to expel Nearman. No other Republican spoke during the House debate. But Rep. Daniel Bonham of The Dalles defended Nearman's character during the special committee proceeding.
"He's a bright guy with a delightful mind that challenges my thought process every day we meet," Bonham said.
But Bonham also made clear he thought what Nearman did on Dec. 21 was wrong.
"I saw the people outside. Nobody should have opened the door to the people who were here that day," he said. "If Mike Nearman believed he wanted to let people into the building for civil discourse, unfortunately for him, the people outside were not those people."
A first for Oregon
Though Nearman was the first Oregon state legislator ousted, legislators in other states have been expelled in recent years.
In New York in 2010, expulsion was based on domestic abuse. In Arkansas in 2019, it was based on failure to pay taxes. In Arizona, Colorado (both 2018) and North Dakota (March), they were based on accusations of sexual harassment.
The Oregon House came close to holding an expulsion vote in February on Rep. Diego Hernandez, who the House Committee on Conduct concluded had committed 18 violations of a legislative rule against creating a hostile work environment. But Hernandez, a three-term Democrat from East Portland, resigned the day before the scheduled vote.
Nearman, 57, is a retired software engineer who lives outside Independence. He unseated Republican incumbent Jim Thompson in a 2014 primary after Thompson expressed his support for marriage by same-sex couples. Nearman is in his fourth term. House District 23 cuts through Polk, Yamhill, Mariolegislative rule against creating a hostile work environment. But Hernandez, a three-term Democrat from East Portland, resigned the day before the scheduled vote. Nearman, 57, is a retired software engineer who lives outside Independence. He unseated Republican incumbent Jim Thompson in a 2014 primary after Thompson expressed his support for marriage by same-sex couples. Nearman is in his fourth term.
House District 23 cuts through Polk, Yamhill, Marion and Benton counties. Immediate after the vote, Kotek instructed the House chief clerk to inform the secretary of state that the seat is vacant. Nearman's seat will be filled by appointment of commissioners from the four counties, weighted by their share of district voters, after Republicans nominate three to five candidates.
There is nothing in state law that prevents Nearman from being nominated or appointed. The Constitution prevents the House from expelling him for the same offense.
Given that the 2021 session is scheduled to close by June 27, it is unlikely that the seat will be filled before adjournment. If commissioners fail to agree on a replacement within 30 days, the governor is empowered to appoint any eligible Republican to the seat for the balance of the two-year term.
Nearman's expulsion does not affect the pending criminal charges against him in Marion County Circuit Court stemming from the Dec. 21 incident.
He is accused of first-degree official misconduct and second-degree criminal misconduct, both misdemeanors punishable by a maximum of one year in jail and a $6,250 fine.
Only felony convictions result in automatic expulsion from the Legislature under the Constitution.