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'Secret' policy lets governor nix civil rights investigations, says report

5:58 PM, Dec 18, 2013   |    comments
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The ability of California local and state government workers to sue for workplace discrimination or harassment has, for more than five years, been subject to what a new report calls a "secret" and unilateral veto by the governor or his top advisers.

That's the most startling allegation by investigators for the California state Senate in their analysis of operations of the Department of Fair Employment and Housing (DFEH), who argue that kind of gubernatorial carte blanche over public sector discrimination cases appears to conflict with due process rights under state law.

"We've essentially exempted government agencies from discrimination laws," said John Adkisson, an investigator for Senate Office of Oversight and Outcomes.

The report issued on Wednesday is an in-depth look at DFEH operations, and finds that the agency's backlog of employment discrimination cases has grown substantially from several years of deep state budget cuts. 

But most notable is what investigators say amounts to a double-standard for allegations made in the public versus private sector - one quietly established in 2008 during the administration of Gov. Arnold Schwarzenegger.

MORE: Read the report (PDF)

The secret policy stands in contrast to what are long-established rules giving DFEH investigators broad authority over when and how to pursue legal action against employers accused of discrimination. "The decision on whether to proceed," says the new Senate report, "is to be based on questions of case strength, importance, and other policy factors."

Even so, a procedure was reportedly implemented in the early months of 2008 by the Schwarzenegger administration - namely, that DFEH officials must submit what's known as a 'Governor's Office Action Request (GOAR)' before pursuing any claim against a state agency. Later, investigators say it was broadened to include local government - from counties to police departments and beyond.

If the request is denied, says the Senate report, the governor can even refuse to explain the reasons for the decision. And such a denial is final.

In 2006, before the secret veto authority was created, investigators say 15 percent of the employment civil rights charges filed by DFEH involved government agencies; by 2012, public sector cases had fallen to only 1 percent of the total.

Senate staffers say they've been unable to determine exactly how many times the hidden gubernatorial veto process resulted in an employment discrimination case being quashed. But they say the actual number would likely underestimate the policy's impact, because some strong cases never even moved forward due to the complications that were involved with the added step of gubernatorial approval. In particular, state officials were told to shrink their review of cases by 60 days in order to allow for the unusual gubernatorial review.

"This has really chilled discrimination claims by public employees," said Senate investigator Adkisson.

The report cites the case of a former state civil rights agency official who resigned in frustration with the policy of stealth gubernatorial decisions -- pointing, in particular, to a 2011 decision to not prosecute what she thought was a strong racial discrimination case against a local school district.

"I struggled with this," ex-agency administrator Marlene Massetti is quoted as telling Senate investigators. "Since when is it somebody's discretion about whether or not we are going to enforce the law?"

The governor's office disputes that it blocked that specific school discrimination case from moving forward, and points out that even the Senate report concedes Brown has rarely intervened in cases sent to his administration for review.

"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," said Brown spokesman Evan Westrup.

Phyllis Cheng, the governor's director of the Department of Fair Employment and Housing, also took issue with the report on Wednesday, saying it's not true that public sector workers don't have a legal outlet.

"We continue to resolve more cases through mediation, outside of courts, and are increasingly more accessible to the public, capturing thousands more complaints online," she said in a prepared statement.

Nonetheless, the report may result in hearings by the Legislature early next year. In particular, researchers say it's important to determine how much latitude any governor has in stepping in to workplace discrimination cases. While the veto power appears to have been used only sparingly since Brown took office, complete data wasn't provided to Senate investigators. 

And perhaps even more troubling, they say, is a 2011 memo that says gubernatorial review applies to "any enforcement action" by a state agency -- not just civil rights cases.

"Even if a governor never uses it," said investigator Adkisson, "it's still a problem."

UPDATE: This story was modified at 5:56 p.m. to reflect additional information and response from Gov. Brown's office.

John Myers is News10's political editor.  Check out his Twitter feed on California politics, his Facebook page, and the weekly News10 Capitol Connection politics podcast.

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