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Threat to Civil Rights Enforcement in California from the Governor's Office

Legislators Steamed About Governor's Plans to Unilaterally Eviscerate California Fair Employment and Housing Commission

By Frank D. Russo

Next Tuesday, September 18 at the Federal Building in San Francisco there will be a hearing before the California Fair Employment and Housing Commission (FEHC), the very same body that the Schwarzenegger Administration's is proposing to virtually dismantle, on the administration's plans.

Rosario Marin, a Schwarzenegger Cabinet Member and the Secretary of the State and Consumer Services Agency which is responsible for civil rights enforcement, and whose agency includes the FEHC is apparently committed to making these changes without having consulted the legislature and despite concerns from legislators. But she needs the consent of the members of the Fair Employment of Housing Commission. This should make for an interesting hearing, since the Governor appoints all of the members of the Commission and three of it's members terms of office expire this month. No pressure there, eh? This should be an interesting one to watch.

Marin was confirmed by the California Senate on January 17, 2007 in her current position.

The Fair Employment and Housing Commission is charged by law with promoting and enforcing the civil rights of Californians--to be free from unlawful discrimination in employment, housing, and public accommodations, and to be free from hate violence and threats of violence.

With the end of the legislative session little more than 24 hours ago, this one may have flown below the radar screen. Below is a letter signed by the Democratic leaders of the California legislature and those whose committees and caucuses deal with civil rights issues. Reading between the polite lines, you can see that this may become quite a donnybrook.

September 11, 2007

Dear Governor Schwarzenegger:

We are deeply concerned about the State and Consumer Services Agency’s imminent proposal to divest the Fair Employment and Housing Commission (FEHC) of its administrative law judges (ALJs), transfer the Commission’s hearing functions to the Office of Administrative Hearings (OAH), and move what little is left of the FEHC staff to Sacramento – all before October 22 (within 60 days of the budget’s passage) and without review or approval by the Legislature.

We think such a decision would be a significant setback to civil rights enforcement in the State of California and contrary to the express intent of the Legislature. Although we understand that the Agency asserts that such a policy change would be revenue neutral, these changes would result in significant shifts within the FEHC budget. In order to fully vet the proposal, we believe the Administration should first obtain approval through the regular policy and budget process before implementing the position reduction and shift to contracting.

As you may know, with the support of the Wilson administration the Legislature in 1992 specifically authorized the Commission to hire its own ALJs. This was done to address concerns that the past practice of relying on the OAH was uneconomical and inexpedient because FEHC legal staff were required to revise and rewrite proposed OAH decisions in order to properly apply the law in this highly specialized area and to appropriately reflect Commission policy direction. In granting this authority to the FEHC, the Legislature specifically noted that "the FEHC has overturned approximately 90% of [OAH] proposed decisions during the past seven years" for a variety of compelling reasons, including that the proposed decisions would have overruled the FEHC's own regulations, and in one case allowed an employer to bar all women from its workplace.

In our view, eliminating Commission ALJs and returning to reliance on OAH is a substantial policy change that appears to be both inefficient and contrary to the intent of the Legislature. Moreover, we are concerned that while the Agency apparently asserts it does not require the Legislature’s approval to make such a drastic change, the Agency also acknowledges that it would require a budget change proposal to reverse that action if the Commission were to subsequently determine that the arrangement was not satisfactory. As a consequence, the Agency would gain exclusive control over whether to revive Commission ALJs or relocate the Commission's office – contrary to the Legislature's command that these decisions rest with the Commission itself.

Although there have been shifting explanations, we are now told that Agency's proposal is based on its wish to better monitor the activities of Commission staff because of concerns about their productivity– particularly, it says, the number of hearings held and regulations issued over the past five years – and to improve coordination between FEHC and the Department of Fair Employment and Housing (DFEH). However, Agency's plan appears to be both precipitous and disproportionate to the alleged productivity problems. It is our understanding that the number of hearings held by the Commission has remained relatively constant over the past five years. Most recently, the Commission held 9 hearings in FY06-07 – one more than the five-year average – a particularly respectable achievement considering that the Commission's staff has been cut by 40 % during this period. Moreover, in the past five years (2003 to date) the Commission has adopted 92% of its ALJs’ proposed decisions and rewritten decisions in only six cases. This record stands in stark contrast to the 90% rejection rate for OAH proposed decisions in the seven years prior to the Commission hiring their own ALJ’s to do the work.

We also understand that there is no backlog in the hearings the Commission conducts for the DFEH. Once a hearing is requested by DFEH, one of the three Commission ALJs is assigned the case. Thereafter the assigned ALJ handles parties’ discovery motions, continuance requests, and other pre-hearing matters. Continuances are granted only for good cause, such as a trial scheduling conflict, unavailability of a key witness or illness. While there may be a significant difference between the number of accusations filed each year by the DFEH and the number of hearings conducted by the Commission, that difference can be fully attributed to the number of cases were the parties opt out to court or to ability of the DFEH – often with the assistance of Commission – to settle the case.

The record therefore does not appear to reflect an urgent or serious problem with FEHC productivity. Equally distressing is that neither the Agency nor the Commission has taken or proposed to take any more direct or modest steps to address the alleged productivity problems prior to pursuing these extreme measures. For example, assuming that there is a genuine problem with the volume of Commission hearings, the Agency has apparently not considered the possibility of such obvious and straightforward actions as retaining OAH to conduct training to improve the administrative efficiency of the FEHC process.

Nor is it clear why relocating the office to Sacramento is necessary to improve Agency supervision of Commission staff, or indeed whether Agency – rather than the Commission – is functionally able to directly supervise the work of Commission staff. In addition, it appears that eliminating the Commission's ALJs would not help accomplish – and in fact would be at odds with – the stated goal of stimulating additional regulations given that drafting regulations is one of the functions of the ALJs, and there would be only one FEHC staff person available to draft regulations in the absence of the ALJs.

Finally, we are disturbed by the timing of this proposal. We note that there are apparently two Commissioners seeking reappointment whose terms will expire in September, after the Legislature begins its interim recess. These Commissioners may feel that they are compelled to support the Agency's recommendation, not because it is reasonable or justified but in order to maintain their positions.

In sum, it appears that these recommendations are not supported by substantial evidence and, more importantly, are not in the best interest of vigorous civil rights enforcement. If there are legitimate personnel or management issues for the Commission or the Agency to address, we believe they can and should be addressed thoughtfully and deliberately, without a rush to judgment and without artificial pressure on Commissioner's seeking reappointment.

Knowing of your strong personal commitment to civil rights enforcement, we are confident that you will commence an immediate inquiry and ensure that any decision on these issues will be postponed until this matter has been fully investigated and appropriately vetted with the Legislature.

Thank you for your prompt attention to this matter.

Very truly yours,

Senator Don Perata,
President Pro Tempore

Assemblymember Fabian Núñez,
Speaker of the Assembly

Senator Sheila Kuehl,
Chair, Senate Health Committee

Senator Ellen Corbett
Chair, Senate Judiciary Committee

Senator Denise Ducheny,
Chair, Senate Budget Committee

Senator Carole Migden,
Chair, Senate Labor Committee

Assemblymember Sandré Swanson,
Chair, Assembly Labor Committee

Assemblymember Dave Jones,
Chair, Assembly Judiciary Committee

Assemblymember John Laird,
Chair, Assembly Budget &
Chair Legislative LGBT Caucus

Assemblymember Joe Coto
Chair, Latino Legislative Caucus

Assemblymember Mervyn Dymally,
Chair, Legislative Black Caucus

Assemblymember Alberto Torrico,
Chair, API Legislative Caucus

Assemblymember Julia Brownley

Assemblymember Patty Berg

Posted on September 13, 2007

Comments

Marin has been pushing this for a while, even though she keeps inventing new reasons for it. First they claimed they wanted to move the current judges to Sacramento, because Chief Justice Ron George asked to take over the FEHC's San Francisco office space for court admin. When that lie was exposed, they claimed it was all about the cost saving. Then they worked out a back-room deal with the head of OAH -- the ALJ's at OAH would hear the cases, but the cases would only go to ALJ's with no knowledge about civil rights.

If these right-wingers would just be honest about their desire to eliminate the FEHC, there could be an honest debate. This underhanded stuff is despicable.

Posted by: disgusted at September 14, 2007 09:28 AM

OUTRAGEOUS!

I'm a San Francisco attorney, not an interested party here. I've always admired the ALJs who work with state boards and commissions; they have somehow managed to survive and to persevere in their efforts to provide fair hearings and adjudication to employees, injured workers, the disabled and sick. They've all been the targets of right-wing Republican attempts, over the past 25 years and more, to gut and silence any essential state action for administrative remedy of the injuries, discrimination, and injustice that is so frquently the lot of those without power or wealth.

This outrageous administrative "putsch" (get that, Arnold?)needs to be exposed and repulsed to the greatest extent possible. Anyone with access to elected representives and the media must act as soon as possible to stop this assault on all of our rights to an effective and fairly representative government.

Posted by: Ken Scudder at September 16, 2007 10:17 PM

I urge you to maintain the independence of the FEHA.
Any changes in its staffing or mission are entirely inappropriate until this matter has been reviewed by the full Legislature.

Posted by: Kellin Defiel at September 16, 2007 11:18 PM

See today's SF chronicle article.

CALIFORNIA
State civil rights panel facing cuts
Dems, others fight plan to rid group of its staff lawyers
Bob Egelko, Chronicle Staff Writer

Monday, September 17, 2007

Gov. Arnold Schwarzenegger's administration is moving to strip California's civil rights commission of its staff of lawyers who hear discrimination cases, a move that has stirred opposition among civil rights groups, Democrats in the Legislature and an advocate for employers.

On Tuesday, the state Fair Employment and Housing Commission will vote in San Francisco on the administration's proposal to relinquish its lawyers and rely on attorneys from a central state office to hear its cases.

The commission now has four attorneys, including one who serves as executive officer and would retain her job. Commission members, appointed by the governor, serve part time without a salary.

On the surface, this appears to be an everyday turf war. The State and Consumer Services Agency, which is pushing for the change, says it simply wants to make the commission more productive and accountable. But opponents say the administration is out to dismantle the commission, with potentially dire consequences.

The proposal would be "a significant setback to civil rights enforcement" by removing a group of experienced hearing officers who understand the fine points of discrimination law, Democratic leaders of both houses said in a Sept. 11 letter to Schwarzenegger. In interviews, two lawmakers said they would take action if the administration persists.

The California Coalition for Civil Rights, representing numerous advocacy organizations, has drafted a letter to commission members urging them to resist pressure from the governor's office. Although the commission is independent of the governor, five of its six members were appointed by Schwarzenegger, and two whose terms expire Wednesday are seeking reappointment.

"We condemn the apparently calculated timing of this proposal," the coalition said.

Leslie Lopez, chief counsel at State and Consumer Services, said the agency had nothing to do with the timing of the vote and isn't trying to undermine civil rights.

"The agency and the administration are very concerned about effectively enforcing civil rights laws and being very vigilant," she said. "That's what this proposal is designed to carry out."

The commission was created by a 1980 law as part of a system that allows Californians who allege discrimination in jobs, housing or public accommodations to seek redress without hiring a lawyer or going to court.

The first step is a complaint with the Department of Fair Employment and Housing, an arm of the administration. The department weeds out claims it considers baseless and refers other cases to the commission, where a department lawyer represents the plaintiff.

A trial-type hearing is held before a commission lawyer, known as an administrative law judge, whose decision is reviewed by the full panel. The losing side can ask the courts to review the decision.

Over the years, the commission has affirmed the rights of transgender people, established the right of a condominium-complex resident to own a doctor-approved "companion animal" to ward off depression, and asserted its authority to grant damages without a jury trial. It has also issued regulations implementing state laws on disability, family leave, hate-crime violence and sexual harassment.

Before 1992, the commission used administrative law judges from the state's Office of Administrative Hearings, which supplies hearing officers for numerous state agencies. State lawmakers concluded that the officers weren't grasping the intricacies of civil rights law; according to data cited by the Legislature, the commission rewrote or rejected 90 percent of the officers' rulings, including one that would have allowed an employer to hire an all-male workforce.

In 1992, the Legislature gave the commission the authority to hire a specialized corps of administrative law judges. Since then, the statistics have turned around, with commissioners accepting more than 90 percent of the rulings.

The Schwarzenegger administration proposal would return to the former system of nonspecialized judges from the Office of Administrative Hearings. Lopez, the state agency's lawyer, said those hearing officers have gained experience in civil rights issues involving other agencies, and she's confident the problems of the past won't be repeated.

The Office of Administrative Hearings also says the commission's staff isn't doing its job. Rosario Marin, who heads the agency, said the three administrative law judges are presenting a total of only eight cases a year to the commission and are taking too long to issue regulations. She made her comments in a letter Friday that she said Schwarzenegger had asked her to write.

The criticism is off base, Democrats said. State Sen. Sheila Kuehl, D-Santa Monica, said Marin seemed to be unaware of the state hearing officers' past difficulties or of the current officers' workload, which includes cases that are settled without hearings.

If Marin persists, "we would really have to question her motives and the motives of the administration," Kuehl said.

She said she would propose legislation to undo the shift, if it occurs.

Assemblyman Dave Jones, D-Sacramento, chairman of the Assembly Judiciary Committee, said he would consider holding hearings to question agency officials. The proposed change would "undermine the wealth of experience that exists at the commission," he said.

San Francisco attorney Garry Mathiason, whose Littler Mendelsohn firm represents 30,000 California employers, said he was also mystified by the proposal.

The commission's hearing officers understand the law and are "absolutely objective," said Mathiason, who feared that switching to nonspecialized judges would lead to "a huge loss in the learning curve."

He said the commission had provided crucial assistance for employers by enacting recent regulations clearing up questions in the state's sexual harassment law.

"This is a little tiny agency that does a phenomenal job with virtually no budget," Mathiason said. "Of all the places one could look for improvement in state government, this is probably the last place to look."

Whom to call
To give your opinion on the proposed changes to the state Fair Employment and Housing Commission, call:

Rosario Marin (above), secretary of the State and Consumer Services Agency, (916) 653-4090.

George Woolverton, chairman of the Fair Employment and Housing Commission, (323) 935-6669.

The commission is scheduled to take up the issue at 1:15 p.m. Tuesday at its meeting at the Phillip Burton Federal Building in San Francisco, 450 Golden Gate Ave., Courtroom 12 on the 19th floor.

E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/09/17/BAGHS6EPS.DTL

This article appeared on page B - 1 of the San Francisco Chronicle

Posted by: outrageous at September 17, 2007 07:52 AM

Hello,from Clifornia. I've been a 20 year advicate,for my own children threw out the years. Back in 1997 had there been no office for civil rights. What would our childrens with disabilatys and how could a district be held acountable. All of us in this world will soon be held acoutable. This would be an injust to and all ready failling goverment if we the pepole had not the resorses available too which it is our given right. Who could do such a thing ? Well God is the one that says all be back!!!!!!!!!!!!!

Posted by: Georgia L. Prather at May 11, 2009 10:24 AM

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