Report faults California governor’s office policy for chilling discrimination claims

12/18/2013 6:57 PM

12/19/2013 6:49 AM

A policy requiring the California Department of Fair Employment and Housing to obtain approval from the Governor’s Ooffice before pursuing discrimination claims against public agencies has compromised the department’s independence and chilled investigations, state overseers said in a new report.

The policy, contained in an administration directive describing how a variety of matters should be elevated to the governor’s attention, applies broadly to state departments proposing to bring lawsuits or enforcement actions against state or local agencies.

Its effect on the Department of Fair Employment and Housing, which investigates complaints of discrimination in housing and employment matters, has been significant, according to a report released Wednesday by the California Senate Office of Oversight and Outcomes.

Since the policy was instituted during the Schwarzenegger administration in 2008, formal accusations of discrimination against public employers dropped from 15 percent of all DFEH accusations to just 1 percent, the report said.

The report said the time required to submit a case to Gov. Jerry Brown’s office for approval has resulted in shortened investigations and automatic sidetracking to mediation of complaints against public agencies.

The report quoted Tim Muscat, a former chief counsel at DFEH, as saying that in perhaps 10 instances, “we could not go forward with a claim because there wasn’t time” to get the governor’s approval.

The report said DFEH defended the policy as appropriate. The department said it submitted 10 requests for approval since Brown took office in 2011, with one request denied in February 2011, four others approved and five withdrawn after the cases were settled, according to the report.

The report questioned that accounting, however. It quoted Marlene Massetti, a former DFEH district administrator who said she was told in May 2011 that the department “had decided not to prosecute a particularly strong race discrimination case against a local school district” because the request to Brown had not been approved.

Brown’s office said no request for approval was submitted to the Governor’s Office in that case.

“Contrary to this report’s deeply flawed claims, our focus is on protecting the rights of Californians while resolving disputes in the most fair and sensible manner,” Brown spokesman Evan Westrup said in an email. “The people of California expect and deserve effective management of departments in the Executive Branch, which is precisely what we are doing.”

The Office of Oversight and Outcomes report said DFEH declined to provide records from Schwarzenegger’s administration.

In one of its recommendations, the oversight office said “the Senate should consider investigating whether the Governor’s Office is requiring approval of other enforcement actions by independent agencies beyond the Department of Fair Employment and Housing. This would focus on any department or agency with a legislative mandate to enforce state law, such as labor, safety and environmental statutes.”

The oversight office’s criticism of the approval policy is included in a broader report that describes DFEH as “critically underfunded,” with workloads that “guarantee a failure to provide ‘effective remedies’ to victims of discrimination, as required by law.”

“California has the strongest anti-discrimination law in the nation,” the report said. “But the agency charged with enforcement is so underfunded that the law cannot be fully carried out.”

DFEH has struggled to implement a new computer system and does not meet federal standards for processing claims within 100 days. According to the report, the department’s expectation that most people filing a discrimination claim do so online has resulted in “a flood of nonsensical, rambling complaints being served on perplexed employers.”

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