SACRAMENTO — Budget cuts and poor decisions have interfered with the ability of the state Department of Fair Employment and Housing to investigate discrimination complaints in California, a state study concluded Wednesday.
The problems include a “secret” policy that gives the governor’s office the power to decide whether the department will pursue discrimination cases against other government agencies, according to the report by the state Senate Office of Oversight and Outcomes.
“This constitutes unequal treatment for public employees, creates a potential for abuse, and compromises DFEH’s statutory independence,” the report said. “Taken to its extreme, it allows a California governor, in effect, to exempt public agencies from the state’s anti-discrimination law.”
Public agencies made up 15% of the enforcement actions before the policy took effect in 2008, but that number dropped to 1% last year, according to the report.
The policy was adopted during the administration of Gov. Arnold Schwarzenegger and continues under Gov. Jerry Brown, according to Dorothy Korber, a principal consultant for the senate office.
Gov. Brown's office indicated in the report that it has not formally denied a request to pursue a discrimination complaint since one was denied in February 2011.
However, Marlene Massetti, a former district administrator with the agency, said she was told on May 16, 2011, that the department had decided not to prosecute a particularly strong race discrimination case against a local school district. Pressing for the reason, she called the chief of enforcement who told her the request had not been approved, the report said.
Still, the policy had a chilling effect on the processing of complaints, some of which were not submitted to the governor's office because it was felt there was not enough time to get approval, the report said. Complaints against public agencies have to be acted on within a year.
“There were times when, because of time constraints, we could not go forward with a claim because there wasn’t time" to get approval from the governor's office, according to Tim Muscat, the former chief counsel, in testimony in the report. “Not a lot of times – maybe 10 altogether.”
The discovery of the secret process allowing the governor’s office to veto enforcement of claims was “shocking” to Martha West, a retired UC Davis law professor. She said the policy appears to violate federal employment discrimination law and undermines the independence of the process.
“What would be the reason for the governor’s office to inject itself into the process other than politics?” West said.
The review, conducted for the state Senate, said the agency’s budget was cut 11% from 2007 to 2012, resulting in some office closures even while the number of employment and housing discrimination complaints rose 16%, to 20,000.
“There is a wide gap between the promise of the Fair Employment and Housing Act – considered the strongest anti-discrimination statute in the nation – and the ability of DFEH to process and investigate the thousands of claims it receives while under constant budget cuts,” the report says.
The agency and governor’s office declined to talk to Senate investigators about the reason for giving the governor veto power, citing attorney-client and other privileges.
The study recommends that the state either increase funding for the civil rights agency or reduce its mission to one that is more realistic. It also recommended taking away the governor’s veto power over investigations.
Not all of the problems with the agency are financial.
A year-old computer system is not operating as needed, and thousands of state managers attended sexual harassment training that does not comply with the requirements of state law or department policy. The training was too short, did not have enough interaction, and didn’t cover all the required subject matter.
[Updated at 1:45 pm: A spokesman for the governor challenged the criticism in the report.
“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 Evan Westrup, a spokesman for Brown. “The people of California expect and deserve effective management of departments in the Executive Branch, which is precisely what we are doing.”
Department Director Phyllis Cheng does not think the policy requiring approval from the governor's office is hindering enforcement.
“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 statement.]
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