This is my sixth essay for 2007 and I’m departing from my essays on the 2007-08 Budget to write about the plan to dismantle the enforcement abilities of the Fair Employment and Housing Commission by the Schwarzenegger administration. As you read this essay, the Commission is scheduled to meet to approve a comprehensive and destructive plan put forth by Secretary of Consumer Affairs Rosario Marin.
Enforcement of all State Civil Rights Laws
The Commission is entrusted with the enforcement of all the various civil rights laws in the state. Employees, renters, home buyers, and consumers of all types are protected against discrimination in several of California’s statutes. These laws are nothing but empty shells without the enforcement provided by the opportunity to go to the Fair Employment and Housing Commission for enforcement. Cases filed with the Commission are heard by a panel of Administrative Law Judges (ALJs) specifically trained and assigned for these duties.
Moving the Commission Staff and Doing Away With Judges
Secretary Marin has decided, in order to save such a miniscule amount of money it would be referred to as “budget dust”, to move the Commission staff to Sacramento and do away with the cadre of ALJs who hear the cases. Instead, she will throw all these cases to the more general Office of Administrative Hearings (OAH), a catchall for the enforcement of all general laws.
Why This Change is Bad for Civil Rights Enforcement
A little history……in 1992, with the support of Pete Wilson’s administration, the Legislature specifically authorized the Commission to hire its own ALJs. This was done because the OAH, which had been hearing cases and which Secretary Marin and the Schwarzenegger administration want to put back in charge, had proven to be both uneconomical and inexpedient, not to mention highly ineffective, because the legal staff of the Fair Employment and Housing Commission had been required to revise and rewrite over 90% of all OAH decisions in this area as incorrect on both the law and Commission policy. At the time the Legislature found it shocking that hearing officers knew so little about the area and wrote such ill-informed opinions. One decision would have overruled the Commission’s own regulations. Another allowed an employer to ban all women from his workplace.
The Advent of ALJs for Civil Rights
After the establishment of specific ALJs for these cases, the Commission, over the years this has been in place, has approved 92% of all decisions. This has saved quite a bit of money over the years. During the current Administration, the staff of the Commission, including the legal staff, has been reduced every year, down to a little more than half of what it had been. Even so, the Commission has maintained its workload, as have the ALJs.
Dispute between Schwarzenegger Admin. and FEHC
Secretary Marin has made no secret of her animosity toward the Executive and Legal Affairs Secretary of the Commission, Ann M. Noel. Ms Noel’s major flaw has been her steady insistence on the enforcement of civil rights law, even in the face of great diminution of the staff. The Secretary attempted to replace Ms. Noel with a woman who couldn’t even answer the first question asked of her: “Do you know the difference between FEHA and the ADA?” Answer: “Well, I know one of them is federal.”
The Move is Contrary to Legislative Intent
The Legislature intended that civil rights enforcement be given a high priority and that the staff and ALJs be specifically trained for the adjudications. In moving the office to Sacramento, allegedly to give it more “oversight” and to “save money”, the Administration is dismantling civil rights enforcement in California. Eliminating Commission ALJs and returning to reliance on OAH is a substantial policy change, inefficient and contrary to legislative intent. The move and the diminution of staff would also controvert the goal of expedient drafting of regulations, given that drafting regulations is one of the functions of the ALJs, and there would be only one FEHC staff person available to do these tasks. The Secretary’s office has already overseen a good deal of foot dragging on regulations concerning sexual harassment and the workplace treatment of people with disabilities.
What to Do
A letter was sent to Secretary Marin signed by Senate Pro Temps Perata, Speaker Nunez, myself, and the chairs of Senate Judiciary Committee, Senate Labor Committee, Senate Budget Committee, Assembly Labor Committee, Assembly Judiciary Committee, Assembly Budget Committee, Latino Legislative Caucus, Legislative Black Caucus, API Legislative Caucus and the Legislative LGBT Caucus. So far, there has been no response. If you are concerned, email Secretary Rosario Marin at [email protected] or the Governor’s Cabinet Secretary, Dan Dunmoyer at [email protected].
[Editor’s note: Last Thursday, the California Progress Report published the letter to the legislators. A letter from Secretary Marin, recently received, is printed in full below. There is an important hearing tomorrow afternoon by the Fair Employment and Housing Commission.]
Letter from Rosario Marin
Dear Members of the Legislature:
The Governor has asked me to respond to your letter to him regarding the proposal to move the Fair Employment and Housing Commission (FEHC) from San Francisco to Sacramento and to explain the reasoning that lead to this proposal.
I want to make clear that the Governor and I appreciate and share your commitment to civil rights and the vigorous enforcement of civil rights laws. For this reason, the State and Consumer Services Agency (SCSA) has proposed that the FEHC move its headquarters from San Francisco to Sacramento, and utilize the Office of Administrative Hearings (OAH) to adjudicate future FEHC cases.
This proposal was developed following a thorough, thoughtful and deliberate vetting process. During the past several months, SCSA has discussed this proposal with the Commission’s staff, the California Attorneys, Administrative Law Judges and Hearing Officers in State Employment union (CASE), and legislative staff. In its discretion, the Commission will take up the Agency’s proposal at its regularly scheduled meeting on September 18, 2007 and have the final decision as to whether to adopt or reject the proposal.
In January of 2007, the Administrative Office of the Courts asked the Department of General Services to vacate the office space currently occupied by a number of tenants including the FEHC and the Department of Industrial Relations, which are currently housed in the State Building on Golden Gate Avenue in San Francisco.
In connection with the request to vacate the office space, SCSA began evaluating the efficiency of the Commission’s operations, and whether the Commission’s staff is fulfilling their critical civil rights enforcement mission under the current structure.
This review determined the Commission’s staff was not fulfilling its mission. Specifically, the Commission’s staff has failed to promulgate current regulations in three significant areas: disability law, pregnancy leave law, and housing discrimination law. The Commission’s existing disability and pregnancy leave regulations are woefully out of date, and housing regulations have never been promulgated. By shifting the adjudicatory function to OAH, the remaining FEHC staff will be able to focus their time and expertise on updating the much needed regulations.
This review further determined there is, and for several years has been, an insufficient caseload to justify four full-time staff to hear only FEHC cases. Over the past five years, there have been four to six Administrative Law Judges (ALJs) hearing FEHC cases, yet these ALJs have presented only an average of eight cases per year to the Commission. Thus, the Commission’s full-time ALJs on average fully adjudicate only two cases (or less) per year. It is also important to note that, despite their caseload, between January 2002 and January 2007, Commission ALJs took, on average, 147 days from the last day of hearing to issue their proposed decisions. In approximately 69 percent of the cases, the ALJs delayed issuing a proposed decision by ordering the parties to submit post-hearing briefs, often on minor procedural matters. These inexcusable delays are prejudicial to both complainants and respondents.
During this time of severe budget constraints, we all must work more efficiently and be more responsive to the needs of all Californians. Such times require us to shift resources to maximize value for taxpayers. With the Commission’s workload averaging two completed cases per ALJ per year, there is no justification for the current staffing level, particularly when compared to the typical workload of the ALJs at OAH.
The SCSA’s proposal to have future FEHC cases heard by OAH will result in greater efficiency, enhanced expertise and the timely adjudication of not only civil rights cases, but other types of cases that the ALJs currently at FEHC will have the opportunity to be able to be involved with at OAH.
OAH staff has more than 60 years of cumulative in-house experience adjudicating and/or litigating Fair Employment and Housing Act (FEHA) cases. And with the addition of the three FEHC ALJs, OAH will have more than enough expertise to be able to handle eight or more FEHC hearings per year.
In addition to having ALJs with substantial FEHA experience, OAH also has extensive experience adjudicating other civil rights cases, including special education, employment and disability rights cases, for other state agencies and local governments.
The Commission has clear statutory authority to determine how its cases are heard; as such, there is no need for the Commission to seek authorization from the Legislature to have its cases heard by OAH. (Gov. Code, § 12935, subd. (j).) This statute expressly provides discretion to the Commission to have its cases heard by either its own ALJs or OAH’s. (Ibid.) Furthermore, the Commission has statutory authority to determine the location of its principal office. (Gov. Code, § 12935, subd. (d).)
Additionally, the SCSA proposal will broaden the pool of well-qualified applicants for the Commission’s staff. This is an important consideration given California’s ongoing workforce management and succession planning efforts.
I’m grateful for your interest in this issue. California is a diverse state and our people deserve to be served by public servants who want to protect and honor their civil rights. Please be assured that this proposal is the result of a thoughtful and deliberate process that will further civil rights, protect Commission employees, and advance the interest of taxpayers.
Secretary, State and Consumer Services Agency