SACRAMENTO — Gov. Jerry Brown’s office blocked the state Department of Fair Employment and Housing from taking action on a discrimination claim in 2011 filed by a government employee against a California agency, according to a Senate investigatory team that said the move was made in secret.
The Senate Office of Oversight and Outcomes said it discovered the action during a review of the state Department of Fair Employment and Housing, the agency charged with investigating discrimination claims related to housing and employment in both the public and private sectors. The oversight office is a nonpartisan arm of the Senate created in 2008 to scrutinize government operations.
In a report released Wednesday, the oversight office said the governor’s office was able to block the discrimination claim because of a secret policy instituted during Gov. Arnold Schwarzenegger’s administration. That policy, the report said, gives the governor’s office unchecked veto power over state Department of Fair Employment and Housing investigations that involve state and local government agencies as the employer.
”Taken to its extreme, it allows a California governor, in effect, to exempt public agencies from the state’s antidiscrimination law,” according to the report.
The practice raises ethical questions about use of power and transparency in government. The oversight office raised questions about whether the policy is lawful.
”People who interact with the government have a right to know what the rules are,” said Gary Blasi, a UCLA law professor who co-authored a critical study of the fair employment department in 2010. “It’s absolutely a fundamental element to due process that everyone knows what the rules are.”
Brown spokesman Evan Westrup contested the parts of the report involving the governor’s office.
”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,” Westrup said in the statement.
The report found budget cuts critically weakened the department’s enforcement of the Fair Employment and Housing Act, a 1959 civil rights statute that protects employees across the state from job discrimination and harassment. During the course of the Senate Oversight investigation, three former employees at the fair employment department revealed the little-known policy.
The department initially refused to confirm the existence of the policy, citing attorney-client and other legal privileges, according to the report. Department officials acknowledged the policy only after being “confronted with their own memos and other documents,” the report noted.
Melissa Figueroa, deputy secretary of communications of the State and Consumer Services Agency that oversees the fair employment department, disputed the characterization of the policy as a secret.
”The process is an effective way to communicate between agencies, departments and the Governor’s Office to ensure that the administration’s policies are being adhered to,” Figueroa said in a written response to The Chronicle.
In the report, the department would not say how often the policy was used under Schwarzenegger’s administration. Since Brown took office nearly three years ago, 10 cases were submitted to his office for approval. One case was denied in February 2011, four were allowed to move forward, and five were withdrawn after the cases were settled, according to the report.
The fair employment department refused to release details to Senate oversight staff members about the lone blocked case. The department said it is looking into a request made Wednesday by The Chronicle.
While the Fair Employment and Housing Act protects both public and private workers, the report said the policy of signing off on claims against state and local government entities has unfairly added an obstacle for public employees not faced by private workers.
”I think the governor’s secret policy is striking a lot of people because of the obvious questions of impartiality,” said Dorothy Korber, who co-authored the report as a principal consultant to the Senate oversight office. “The big thing for me is that this law is really important. It brings people justice. A lot of people who can’t find justice any other way go to the Department of Fair Employment and Housing. Their claims deserve attention.”
The report noted that investigations that reach the governor’s desk have already been deemed meritorious by the fair employment department.
Department Director Phyllis Cheng said in a written statement that she respectfully disagrees with many of the report’s conclusions.
”The department has aided thousands of victims of discrimination in the public and private sectors statewide and has doubled the value of its judgments and settlements since 2009,” Cheng said. “We continue to resolve more cases through mediation, outside of courts, and are increasingly more accessible to the public, capturing thousands more complaints online.”
By Melody Gutierrez