Fact Check: Is it true that Rep. Pendleton 'gave us HB2'?
Posted September 27, 2016
Updated September 28, 2016
Raleigh, N.C. — Election season isn't just flooding the airwaves with political claims. Mailboxes across the state are getting deluged with mailers alternately extolling and tearing down candidates.
One of those fliers recently caught our eye in House District 49, a Wake County district that climbs from inside Interstate 440 up Creedmoor Road to neighborhoods north of Interstate 540. Rep. Gary Pendleton, a two-term Republican and former county commissioner, is running for re-election against Democrat Cynthia Ball, a member of the Raleigh Civil Service Commission, and Libertarian David Ulmer.
"These two gave us HB2," the text on the front of a flier from N.C. Families First reads just below a picture of Pendleton and Gov. Pat McCrory. The back side of the flier goes on to make the case that, "Gary Pendleton and Pat McCrory support HB2."
N.C. Families First is a politically active nonprofit group aligned with Democratic candidates and causes. It has been the funnel for non-candidate campaign spending form the likes of the Democratic Governors Association and the National Education Association.
HB2, of course, is a reference to House Bill 2, the measure that state lawmakers say they passed in response to a Charlotte ordinance dealing with the use of bathrooms by transgender individuals. The state bill goes further, creating a statewide nondiscrimination policy that excludes LGBT people and restricting imposition of local minimum wage provisions.
THE QUESTION: Is it correct to credit or blame Pendleton for giving North Carolina House Bill 2?
SUMMARY JUDGMENT: This flier raises a question because Pendleton is one of three Republican lawmakers who did not record a vote with regard to the bill. Other evidence relied upon by N.C. Families First also puts the claim on shaky ground.
THE VOTES: There are two key pieces of evidence to note from the legislative record.
First, Pendleton is listed among the 72 members of the General Assembly who requested the March special session that created House Bill 2.
Pendleton said he was initially uncomfortable with that call and urged legislative leaders to wait a month until the General Assembly was scheduled to return for its regularly scheduled session. At the time, Pendleton recalled, House leaders pushed for a special session because the Charlotte ordinance would have gone into effect before that session came around.
The Charlotte ordinance would have required businesses within the city limits to allow transgender individuals to use the bathroom and locker room the corresponded with their gender identity. Pendleton said he believed that local law ought to be reversed, but he would have rather seen the Charlotte City Council taken to court rather than a special General Assembly session.
"They didn't give it to us in advance," Pendleton said of the draft language that would become House Bill 2. "When we got there, it had everything in it, including the kitchen sink."
The bill in question required transgender individuals to use the bathroom corresponding with the gender on their birth certificates when in a publicly owned facility, such as a public school. It prohibited local governments from imposing local transgender equality standards on businesses. The bill also created statewide nondiscrimination policy that prohibits cities and towns from extending protections to LGBT individuals, which is something that has been the focus of many businesses, such as the NBA, that have objected to the law. House Bill 2 also further restricted local minimum wage standards and curtailed the ability to sue in state court for employment discrimination, a provision that has since been partially repealed.
Pendleton said the measure went much further than what he was prepared to deal with.
"I told the clerk I want an excused absence, and I left," he said.
Official legislative records show Pendleton did not cast any votes with regard to House Bill 2.
Pendleton is one of three Republicans listed as absent that day. Rep. Chuck McGrady, R-Henderson, was out of the country, as was Rep. Charles Jeter, R-Mecklenburg, who has since resigned from the General Assembly. Rep. Paul Tine, an unaffiliated member from Dare County who caucused with the Republicans, voted against the bill.
THE REST OF THE RECORD: Pendleton's voice is missing from most of the contemporary news accounts from when House Bill 2 passed. However, in the weeks following passage, Pendleton and a company he owns, Preferred Planning and Insurance, were listed as a supporter of Keep NC Safe, a coalition put together by the North Carolina Values Coalition and other social conservative groups. That listing made it into a piece published by the Charlotte Observer, which is still online.
A handful of businesses originally listed by Keep NC Safe told WRAL News at the time they were mistakenly included as supporters.
"The first I knew about it was when one of my Democratic supporters called me," Pendleton said of his inclusion on the Keep NC Safe list.
Pendleton said his name was not included with his permission and added that Preferred Planning and Insurance does business as Pendleton Financial Wealth Management. He said that, should he have wanted to lend his corporation's backing to a cause, he would have used the Pendleton Financial moniker.
"Neither Rep. Pendleton nor Pendleton Financial are on the public supporters list distributed by N.C. Values Coalition earlier this year. I looked at our records and did not find Mr. Pendleton listed as signer on any petition delivered to the Governor or Charlotte City Council regarding HB2," said Jim Quick, a spokesman for the Values Coalition.
Asked about why Preferred Planning and Insurance is listed, Quick said that listing was created by someone named Tori Malec. It wasn't immediately clear who Malec is, but she is not listed as a staffer on Pendleton's business website or in their phone directory.
REPEALING HOUSE BILL 2: Sen. Tamara Barringer, R-Wake, was the first Republican lawmaker to call for a special session to repeal the law, and she was soon followed by others, including Pendleton.
Pendleton said he still thinks the Charlotte ordinance is unconstitutional, and he would insist on a measure related to bathroom safety before voting for a full repeal of House Bill 2. That "bathroom safety" line is a key reasons backers of the bill give for passing the law. They said ordinances like Charlotte's would allow predators to use transgender non-discrimination laws as permission to prey on girls and women. Opponents of the bill rightly point out that harassment and assault are already crimes, and there are few, if any, instances where a predator has used such a law as cover.
That said, he does oppose the remainder of the bill.
BACKING UP THE CLAIM: "Gary Pendleton sounds like another slick politician as he tries to play both sides of the discriminatory HB2," said Gerrick Brenner with Progress NC Action, another liberal advocacy group that frequently speaks on behalf of nonprofits like N.C. Families First. "If Pendleton does not support HB2, then why is Pendleton's insurance company listed as a supporter of HB2? If the listing six months ago was a 'mistake,' why did Pendleton not publicly correct this so-called mistake until Pendleton realized it was a political liability? And if Pendleton did not support HB2, why did Pendleton vote to hold a special session for the sole purpose of passing HB2? Gary Pendleton's excuses are ridiculous, and the voters won't buy them."
THE CALL: Pendleton would make this a much more straightforward call if he were opposed to House Bill 2 in total. His support for the provisions related to transgender bathroom use certainly put him in support of the best-known provision of the bill, despite his misgivings about the rest. It's also fair to point out he is listed among those lawmakers who requested the special session.
However, the evidence stemming from the N.C. Values Coalition listing appears to be less than reliable, and the coalition does not count Pendleton among its supporters on the topic of House Bill 2.
The strongest evidence one way or the other with regard to this claim comes from the General Assembly itself. Pendleton did not record a vote on the bill and was not an outspoken proponent of it.
To suggest that Pendleton "gave us" House Bill 2 or bears responsibility for the measure equivalent to McCrory, who signed the bill into law, stretches beyond what the facts tell us. The lead authors of the bill were Rep. Dan Bishop, R-Mecklenburg, in the state House, and Sen. Buck Newton, R-Wilson, in the state Senate.
Pendleton is, at most, an ambivalent actor who appears pulled between the moderate political tendencies of his legislative district and the conservative pull of House Republicans as a group. We give this claim a red light on our fact-checking scale because the statement in question simply isn't supported by the available record.