Lawmakers mull more oversight of Wyoming National Guard

The Wyoming Air National Guard military base in Cheyenne. (Mike Vanata/WyoFile)

Proposed legislation follows whistleblower accusations; General says culture does not enable sexual harassment

By Jennifer Kocher, WyoFile

The Wyoming Legislature’s Joint Transportation, Highways and Military Affairs committee is considering several legislative proposals aimed at making the Wyoming National Guard more transparent and accountable.

The move follows whistleblower allegations of a toxic workplace, systemic retribution and deliberate attempts to downplay incidents of sexual harassment, discrimination and assault.

The committee issued the recommendations at its meeting in Casper Monday following Adjutant General Maj. Gen. Greg Porter’s assessment that the culture of the Wyoming Military Department, which oversees both the Air and Army National Guard, does not enable sexual harassment or assault.

The proposals include requiring the Wyoming Military Department to submit an annual report detailing the number of sexual assault and harassment incidents as well as data from employee surveys.

The Wyoming National Guard. (Mike Vanata/WyoFile)

Lawmakers also considered measures to allow the military to share data with local enforcement agencies, and appoint an external oversight agency to ensure claims and complaints are being reported and administered properly within WMD.

The state would fund the proposed oversight, Committee Co-Chairman Rep. Donald Burkhart (R-Rawlins) said.

Another suggestion was to amend House Bill 22 – Wyoming military code, which was signed into law this spring, to allow a military member to file a complaint against a senior officer.

“I’ve heard loud and clear that there was a lot of feeling we need to have an outside look,” Burkhart said, after hearing public comments and Porter’s summary of a 2021 Annual Sexual Harassment and Sexual Assault Report.

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The committee is tentatively scheduled to consider draft legislation on Jan. 11.

‘Improvement to be done’

The committee and Gov. Mark Gordon requested the sexual harrassment and assualt report a year ago. It includes an overview of the number of sexual harassment and assault cases during the 2021 fiscal year as well as findings from a survey that polled just over half of the 2,880 soldiers and airmen between February and April but did not include federal and state civilian employees.

Along with the survey, the report included an external review by the South Dakota National Guard as well as an informal “sensory” review of 300 service members across six locations by the state’s Inspector General.

The report detailed five sexual harassment complaints throughout both branches between February and June 2021. These complaints included sexual harassment of a soldier while dispatched on mission, inappropriate comments by a supervisor, disrespect from a senior officer to his subordinate, a soldier being propositioned by a co-worker on social media and an allegation of a hostile work environment. Two of the incidents involved personnel outside of the guard. There were at least five more minor harassment issues reported, such as inappropriate comments and lewd or sexist jokes, that supervisors handled, Porter told the committee.

An excerpt from Wyoming National Guard employee surveys. (Screengrab)

The report also detailed six reports of sexual assault, three unrestricted and three restricted, meaning the victim does not file a report but receives access to services. In all cases, assaults are investigated by outside law enforcement agencies. Of the three unrestricted assaults, all were females in military service with 83% of those occurring off base and with alcohol involved.

Upon analysis of the report, Porter told the committee, he and Assistant Adjutant General Justin Walrath agreed there “was not a widespread problem with sexual harassment or sexual assault.” However, Porter said, both conceded there is work to do. Suggestions included submitting the annual report, adding more fully trained sexual assault response coordinators as well as moving the Equal Employment Opportunity (EEO) reporting office to another location on base to provide more anonymity.

Porter identified four areas requiring attention: organizational communication; high-stress work environment; leadership and morale issues; career development and work-life balance challenges. He also noted a preponderance of inappropriate jokes, comments and stories involving gender and race.

He acknowledged the agency could take steps to better combat assaults and harassment.

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“Overall, I will tell you that I think there is some improvement to be done,” Porter said. “I’m not going to shy away from that. We have a commitment to our force and our people to keep getting better in that area.”

‘Toxic culture’

Maj. Marilyn Burden served in the Wyoming Air National Guard for 17 years before transferring to the Colorado Air Reserve in 2018 to get away from what she described as the Wyoming guard’s “toxic culture.” She was on hand at the meeting to present her experience and provide suggestions.

Burden said she offers a unique perspective given her experience. She held positions in the Equal Opportunity office and as a sexual assault response coordinator and filed a request for an IG report into purported harassment and abuse among senior leadership. That request was ultimately dismissed.

Marilyn Burden at her home in Cheyenne. (Mike Vanata/WyoFile)

Burden told the committee that, despite recent media coverage, the guard is still not complying with its own rules in processing complaints of harassment, discrimination and assault. She has heard of several people who have been denied the opportunity to file complaints and are instead being retaliated against with career and other threats, she said.

“What Wyoming Guard leadership says and how they handle things and their actions are not always the same,” Burden said.

She had a laundry list of recommendations for the committee, including a request that the agency disclose quarterly complaint data on its website in compliance with the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, and that present and past leaders be held accountable for “immoral and unethical behavior and toxic leadership styles.” She, too, suggested an external oversight review board to investigate the handling of complaints as well as the improper use of non-disclosure agreements to silence victims.

Other recommendations included appointing an adjutant general who has served at least one six-month tour of duty, instilling term limits and allowing the governor’s office to vet applications instead of the Joint Force Readiness Center and including reinstating Article 138 in HB 22.

Burden said she was happy to see the legislature and governor finally taking action after years of complaints.

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‘How many is enough?’

Former civilian guard employee, Jennifer Rigg, is appalled by the results of the guard’s employee survey, she said.

Rigg served as director of psychological health for the Wyoming Air Guard between 2014-2019 and currently has her own EEO case pending. That case alleges retribution Rigg says she encountered for reporting sexual harassment and assaults as well as the mishandling of her own sexual assault case.

Jennifer Rigg at the Cheyenne Train Depot. (Mike Vanata/WyoFile)

Where Porter downplayed the relative low percentages of affirmative responses on the handful of questions shared on the report, Rigg said that even one “yes” answer should be cause for concern.

Rigg sees several red flags, particular with the 101 “yes” responses, amounting to 13% of soldiers and airmen, who indicated they had received sexually explicit or other materials from a unit member that made them uncomfortable. This, by EEOC’s definition, Rigg noted, is harassment.

“Why is this not an issue?” she said. “How many is enough to warrant doing something?”

More concerning yet to Rigg were the 29 respondents who said they had been intentionally touched in unwanted ways by someone in their unit, which by the same definition qualifies as sexual assault.

“This indicates there is a problem,” she said, “whether they want to admit it or not.”

She wondered how this same data would be interpreted in other institutions or businesses, and if they would be granted the same leeway by their respective boards and human resource departments.

She, too, however, is happy to see action from both the committee and governor.

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The governor’s office has initiated an external review of WMD by Patricia Bach, director of Wyoming Administration and Information, and Robin Cooley, director of the Wyoming Department of Workforce Services, according to Michael Pearlman, Gordon’s communications director.

“They will review the WYMD’s adherence to processes and procedures related to the filing and handling of diversity, inclusion and sexual harassment complaints,” Pearlman said.

Gordon had no comment on legislation proposed by the committee, Pearlman added, as he has not had the opportunity to review it.

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