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