Secret policy allows governor to veto public job bias cases

SACRAMENTO — A long-secret policy has allowed the governor to veto employment discrimination cases against public agencies without explanation or disclosure, hampering the work of the state Department of Fair Employment and Housing, a legislative report said Wednesday.

Public agencies made up 15% of the department’s enforcement actions involving employment discrimination before the policy took effect in 2008, but that number dropped to 1% last year, said the report by the state Senate Office of Oversight and Outcomes.

There is no requirement that the governor’s office approve the pursuit of complaints against private employers, the report noted.

“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.”


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.

State officials declined to give the Senate researchers information on the number of claims denied by the Schwarzenegger administration. The department indicated that Brown’s office has formally denied one request, but department employees told Senate consultants that other cases were dropped as well.

In response to the policy, the department automatically sidetracks all public employee claims to an early settlement procedure, regardless of whether it has been requested by the complaint filer, the report said.

Some complaints judged by the department to have merit were not submitted to the governor’s office because it was felt there was not enough time to get approval given the tight deadlines for investigations and enforcement.


“There were times when, because of time constraints, we could not go forward with a claim,” Tim Muscat, the former chief counsel, said in testimony in the report. He said that occurred about 10 times that he knew about.

Department Director Phyllis Cheng disputed claims that the policy requiring the governor’s sign-off is hampering the resolution of complaints.

“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.

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.”

Martha West, a retired UC Davis law professor, 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.

Senate President Pro Tem Darrell Steinberg (D-Sacramento) said that if the governor’s office is going to retain such authority, it needs to be spelled out in transparency regulations that would require an explanation if the administration blocks enforcement when the department feels it is justified.


“I do have concern because it’s unclear what the purpose of the review is,” Steinberg said.