DOVER — While legislators determined that state Rep. Gerald Brady, D-Wilmington, used racist and sexist terms to discuss human trafficking in a June 27 email, an ethics complaint filed against him has been dropped.
The decision came after the House Ethics Committee found that remarks in the email were protected by the First Amendment, which guarantees the right of free speech.
In a released statement, HEC chairwoman Valerie Longhurst, D-Bear, said, “Rep. Brady’s remarks were racist, sexist and should never be tolerated. That’s why House Leadership immediately condemned them and instructed him to take several steps to address the damage his words caused.
“But while we reject his comments, we have to separate our moral outrage from our duty to follow the law. We must acknowledge a very bedrock principle of our country: unpopular speech, even despicable language like this, is still protected under the Constitution.
“While we condemn Rep. Brady’s remarks, the committee determined that we have no ground to regulate or punish an elected official’s speech. Ultimately, the decision of whether he should continue to serve in the House is the responsibility of the constituents he represents.”
Additionally, the HEC unanimously determined that no laws had been broken.
Following the public release of the decision, Rep. Brady released a statement that read:
“While the Ethics Committee concluded that this situation didn’t constitute a violation, it does not mean that my words weren’t wrong. Free speech is crucial to democracy, but so is the duty to use it wisely, and to take responsibility when you do not.
“I have spent the past several weeks contacting colleagues, constituents, community members and members of the Asian-American community to offer my apologies and to open a dialogue with them. I have participated in a sensitivity training course as prescribed, and I have remained in contact with the instructor to incorporate the lessons I have learned going forward.
“My goal throughout this process has been not to simply call a person once, offer my apologies and move on; it’s to open a dialogue about how to sincerely and constructively address this issue I caused and to turn this horribly negative situation into a learning experience for others and to bring the concerns of the Asian-American community forward. Despite the committee’s decision and my plans to not seek re-election, I intend to continue those efforts.”
Rep. Brady, who is executive director of the Delaware AFL-CIO, made the comments in a June 27 email he inadvertently sent to an advocate for decriminalizing prostitution. Thinking he was forwarding an email from the advocate to another person from whom he was seeking input, Brady instead mistakenly hit “reply” and sent his comments to the advocate.
“Is the dude basically saying, if we provide free (oral sex) for Uncle Pervie there will be few rapes and few (a slur for Chinese women) will be shipped in CONEX containers to the Port of Wilmington??” Rep. Brady wrote from his official government email address.
Rep. Madinah Wilson-Anton, a Newark Democrat, filed the complaint against Brady with the Ethics Committee, alleging that he had engaged in “conduct which the House determines (i) brings the House into disrepute or (ii) reflects adversely on the member’s fitness to hold legislative office.”
“If we do not hold our own members accountable for their actions, we cannot claim to have values that differ from theirs,” wrote Wilson-Anton, who asserted that “hateful language is violent language.”
“If Delawareans cannot trust us to hold our own accountable they cannot trust us to govern in their best interests,” she added.
In working toward its determination, the HEC sought “precedent in Delaware, the U.S. House of Representatives and other states. Reprimands and punitive measures taken against elected officials are extremely rare, and have been almost universally for breaking the law, sexual misconduct, or misusing the elected office for personal gain.”
Also the HEC said, “None of those cases involved an elected official’s speech in private communications.”
Following the announcement, Delaware State Republican Party chair Jane Brady called for Rep. Brady’s resignation in a statement that read:
“The House Ethics Committee today dismissed the complaint filed against Representative Gerald Brady regarding offensive remarks that were both racist and misogynist. The Committee cited court precedent assuring free speech for elected officials. The Republican Party previously called on Representative Brady to resign. Representative Brady is certainly entitled to say whatever he thinks, and his conduct may not rise to the level of illegal behavior, but it was certainly inappropriate and offensive and warrants his resignation.”
In its report, the HEC noted that:
• “While it is manifestly the business of this Committee to ensure the decorum of House proceedings and to punish unlawful and unethical conduct that reflects upon the integrity of the House, there is no precedent for policing the lawful expression of opinions or a member’s choice of words in what he believed to be correspondence with a private citizen. Determining which ideas and manners of expression are beyond the pale is first and foremost the province of voters. The First Amendment of the United States Constitution protects freedom of speech and it would run contrary to those principles to punish “the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
• “In determining that no further action will be taken, the Committee notes that the member has issued an apology, already completed a sensitivity training course, and indicated his intention not to stand for election when his current term is complete.”
On July 26, Rep. Brady announced he will not run for re-election when his term ends in November 2022.
With the determination that the complaint should be dismissed, the HEC must send a report to the state House of Representatives in the next session, citing the decision and explaining the reasons it. The HEC reported noted its unanimous verdict that no laws were broken and “ ... complaints, investigations and the information received by the committee are initially confidential. Once the committee determines that a complaint is in order, an initial review is conducted to determine whether the allegation constitutes a violation of a Rule of Legislative Conduct or if the complaint merits further inquiry.”
Under HEC rules, according to a news release, “Ethics Committee investigations and the information received by the committee are confidential unless and until the committee reports to the full House that it has determined that the complaint fails to allege facts that constitute a violation of the Rule of Legislative Conduct, or it determines that the allegation of a violation in the complaint merits further inquiry.”
In a letter to Rep. Longhurst last week, Delaware Coalition for Open Government member John Flaherty pushed for a closed door HEC meeting to be open to the public.
“This closed door meeting will prevent our citizens from observing and monitoring the decisions made at this meeting. In addition to being closed to the public, there is no specific issue on the agenda other than listing ‘executive business before the committee,” Mr. Flaherty said.
Mr. Flaherty cited part of the Delaware’s Freedom of Information Act policy that reads, “‘It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy.”
According to Rep. Longhurst, “While I understand that some are frustrated by the perceived secrecy of the Ethics Committee process, I want to stress that we closely followed the rules that all House members approved earlier this year, which have existed for decades,” said Rep. Longhurst. “These rules ensure that complaints are given their due consideration and that a full accounting of the committee’s actions are made public.”
The report will be released to the House of Representatives and public when the next General Assembly session begins in January 2022.
The Associated Press contributed to this story.