A Capitol Police lawyer accused of race-based and sex-based discrimination in a lawsuit will not be allowed to defend the department against the grievance in which he is named, Senate Sergeant-at-Arms Terrance Gainer said Thursday.

Gainer, who is a lawyer and former Capitol Police chief and sits on the Capitol Police Board, said that in any normal circumstance, Frederick Herrera, head of the Capitol Police Office of Employment Counsel since 2003, would defend the department in workplace legal disputes.

But because senior employment counsel Scharon Ball’s lawsuit alleges that Herrera discriminated against her, the Capitol Police Board decided it would be improper to have Herrera try the case, Gainer said.

“I did question the propriety of him being involved in the case and asked Chief [Phillip] Morse to have a legal opinion issued by his counsel about what we should do,” Gainer said.
On Monday, the counsel recommended that Herrera not try the case, he added.

“The chief and the board agreed he will not be involved in the case,” Gainer said. “It’s within the rules that he could do it. But the decision was made, for appearance purposes and to be in strict compliance with some of the federal rules, that he should not be involved.”

On Wednesday, another lawyer said Herrera should recuse himself from cases involving race-based discrimination.

Joe Gebhardt, who is representing more than 250 current and former Capitol Police officers who allege that superiors created a hostile working environment and denied promotions to qualified black officers, said Herrera should no longer appear in court on that case and another brought separately by one of the officers.

Gainer said Herrera will still be allowed to try cases dealing with race or gender discrimination.

“Everyone’s innocent until proven guilty,” Gainer said. “If [Gebhardt] has a legal position on that, he can present it to the court and the law will respond.

“The allegations from the plaintiff, Mrs. Ball, are serious, but they’re merely allegations,” Gainer added. “We’re trying to be cautious about how we approach this and not make rash decisions.”

Ball filed her suit Sept. 23 against Morse and House Sergeant-at-Arms Bill Livingood, chairman of the Capitol Police Board. She alleges they ignored her complaints about Herrera’s discriminatory conduct and retaliated against her for filing internal affairs complaints against him.