Findings and Recommendations
Context of Committee Proposals

            In the last few years, significant statutory amendments to the CHRO enforcement process have been made.  These include:  the creation of the merit assessment review (MAR) system; the addition of mandatory mediation; and the tightening of the time frame within which investigators have to do their work.  Other significant changes have only recently gone into effect, for example, giving the complainant the unilateral right to seek a release of jurisdiction after a MAR dismissal and the addition of full time hearing officers. 

In addition, considerable internal agency administrative change has taken place. In considering the most useful direction for this study at this time, the program review committee balanced the fact of tremendous management change at the agency in the last 18 months with the concerns prompting the study, many of which predated the management changes.  Recent activities include the following:

·        In July 1998, the previous executive director left office after eight years upon the expiration of his second four-year term, with a pending state ethics complaint resolved in December 1998 with his payment of a $3,000 fine [1] ;

·        A new executive director, hired by the commission on an interim basis beginning on March 15, 1999, was permanently appointed on July 22, 1999, for a four-year term;

·        Five new commissioners (out of a total of nine) have been appointed, three during the summer of 1999 and two in November 1999.  As of December 1999, there are no vacancies on the commission.  A new chairperson was also recently appointed;

·        Two deputy directors – one responsible for enforcement, the other for education, diversity, and compliance – who directly reported to and served at the pleasure of the director, were let go in September 1999 by the current director in a reorganization, and the positions eliminated; and

·        The long unfilled position of Chief of Field Operations was filled, with the directive to be a presence in the regional offices and a link between the regions and the executive director.

The challenge for legislative oversight purposes is to determine, at this time, whether the solutions to CHRO problems call for further statutory change or whether the focus should now be to give the new management a chance to work within the current statutory framework.  In either case, the enforcement of Connecticut’s civil rights laws is a critical function of state government, which cannot be allowed to flounder if only in perception.  At the committee’s October 19, 1999, public hearing, the new CHRO executive director showed an awareness of CHRO problems:

My personal observations and those of the consultants [retained by the commission] indicated that, among other things, employee morale was low, there was an erosion of trust between front-line staff and management, the agency is crippled by inadequate resources, there existed inadequate communication between staff and management, inadequate training opportunities, little opportunity for upward career mobility, and inconsistent policies and procedures among regional offices.

The recommendations contained in this report take into account the promise of new leadership, but also suggest ways to promote consistency and objectivity in the execution of the complaint enforcement process, along with increased focus on maintaining accurate data for management purposes.  The agency has already begun to work on some areas; where pertinent, agency initiatives and plans are pointed out. 

This chapter sets out the program review committee findings and  recommendations in three main areas:  1) commission structure; 2) the discrimination enforcement process; and 3) management.  

COMMISSION STRUCTURE

One of the areas under review in the study is the structure of the Commission on Human Rights and Opportunities (CHRO). A central question is who ultimately is accountable for CHRO. Its structure as a state entity charged with enforcing laws, headed by a multi-member volunteer commission that appoints its executive director, is not unique in Connecticut or elsewhere. It is different, of course, from the more typical state agency model where the governor appoints a single commissioner to head a department.  In analyzing CHRO’s management structure, the committee examined the changing role of the commission over the years, compared CHRO and other similarly structured entities in Connecticut, and reviewed the experience in other states.

Changing Role of Commission

In 1947, when the commission first acquired enforcement authority, the commissioners themselves were charged with investigating complaints. From the beginning, there have always been separate hearing officers appointed to adjudicate cases where reasonable cause was found. Over the years, a staff structure grew to handle investigations and adjudications as well as to assist the commission in its duties.

Since that time, the commission has acquired additional authority and responsibility in the areas of state agency affirmative action, contract compliance, and education and outreach.  The commissioners as a group are required to vote their approval or disapproval of state agency affirmative action plans.  In contrast, the role of the commissioners in CHRO’s original function -- enforcement -- has grown smaller.  

Up through the 1970s, the commission members as a group voted on findings of reasonable cause and no reasonable cause, giving final approval to staff-recommended investigative dispositions; the commission no longer performs that function.  Legislative changes in the last 10 years have continued to shift responsibility from the commissioners (as a group and individually) to CHRO staff, particularly the executive director. 

In 1989, although there had been an executive director for years, legislation codified the position, and reconstituted the commission. The executive director was given specific duties, previously held by the commission, including: 1) conducting comprehensive planning with respect to the function of the commission; 2) coordinating the activities of the commission; and 3) causing the administrative organization of the commission to be examined with a view to promoting economy and efficiency

One year later, in 1991, the statutory involvement of the commission in enforcement matters began shifting to its staff.  Per P.A. 91-302:

·        commissioners were removed from responsibility to investigate or conciliate;

·        the executive director replaced the commission chairperson in assigning complaints for investigation and appointing hearing officers;

·        the executive director replaced the commission in granting extensions of investigations; and

·        the executive director was authorized to enter defaults against respondents failing to answer complaints under oath or answer interrogatories or respond to subpoenas.

Finally, in 1998, the legislature removed the responsibility for handling reconsiderations from the commission, giving it to the executive director or his or her designee.

Commission authority that has been strengthened, or at least clarified, that impacts enforcement involves authority over the executive director.  As discussed earlier, 1998 legislation clearly establishes that the executive director serves at the pleasure of the commission.

Thus, what remains of the commission authority with respect to enforcement is:

·        appointing and evaluating the executive director;

·        issuing declaratory rulings  upon petition under the Uniform Administrative Procedure Act;

·        handling appeals from decisions of local human rights boards;

·        establishing policy;

·        initiating complaints on its own;

·        holding hearings, subpoenaing witnesses, and taking testimony, in addition to the human rights referees (no commissioner is allowed to participate in the deliberations of the presiding officer in a case);

·        petitioning the court for enforcement of any order of relief (along with complainant);

·        adopting regulations for the alternative dispute resolution process (required in 1994, but not done to date); and

·        petitioning the superior court, upon review and recommendation of an investigator, that an injunction is needed to prevent irreparable harm to a complainant pending final disposition of the complaint (for businesses with 50 employees and more).

All of the above functions could, of course, be handled by a single commissioner-headed agency. The question could be posed why civil rights enforcement shouldn’t be handled the same way as enforcement of consumer protection laws, environmental laws, or insurance laws, all administered in departments headed by single commissioners appointed by the governor.  In contrast, the commissioner of education, the chief executive of the education department, is appointed by the State Board of Education.

The conventional wisdom for the use of a board or commission that appoints its own administrative head is to diffuse political influence from the work of the agency involved. There are other enforcement agencies that are similarly structured as CHRO.  Specifically, the Freedom of Information Commission (FOIC), the State Ethics Commission (Ethics), and the State Elections Enforcement Commission (EEC) all have multi-member policy boards that appoint their executive directors. Table V-1 compares selected characteristics of these commissions to CHRO.

As the table shows, all these commissions are about the same size and the commissioners serve terms of approximately the same length. Their common directive is to investigate and make determinations of violations of state laws. All four employ staff as deemed necessary to perform their duties.

Differences are seen in the appointment of the commissions’ chairpersons. Both Ethics and EEC chairpersons are elected by their fellow commissioners while the CHRO and FOIC chairpersons are selected by the governor. In terms of compensation, only the CHRO commissioners do not receive per diem pay for performing their duties. Only CHRO commissioners are not subject to political qualification requirements for member diversity.  

Finally, only CHRO commissioners are not required to be ratified by the legislature.  This last difference is particularly interesting because the gubernatorially appointed CHRO human rights referees, who act like judges in the agency’s adjudications process, must receive the advice and consent of the General Assembly. As the responsibilities of CHRO are as important as those of any of these other agencies, this discrepancy does not make sense. The fact that there is a mixture of gubernatorial and legislative appointments for CHRO commissioners does not distinguish CHRO; other commissions have similarly mixed appointments.

Overall, there are similarities and differences among the characteristics of these four Connecticut enforcement agencies.  For purposes of this study, the focus is on how the commissioners are appointed and who appoints and removes the administrative head of the agency. In those respects, other than the advice and consent issue, there is great similarity.

Other State Civil Rights Agencies

The committee collected information on civil rights agencies in other states. Whenever possible, information was compiled on all states, but some information was gathered only for a select number of states with certain characteristics, including similarities to Connecticut.

Forty-seven of the 50 states have an entity within state government that investigates claims of illegal discrimination.  In 35 of those 47 states, civil rights enforcement is governed by human rights commissions or boards. Boards vary in size, ranging from as few as three commissioners (Massachusetts) to as many as 20 (North Carolina). Commission members are typically appointed by the governor and confirmed by the senate and serve staggered terms of anywhere between three to six years. In some states, statutes mandate the geographical, political, or community group composition of the commission. Commission members are generally paid a per diem allowance for the time they devote to commission affairs rather than receive an annual salary. Typically, a full time executive director who supervises staff and administers the day-to- day affairs of the agency is appointed by the commission.

Detailed information on 12 states in addition to Connecticut was collected by the committee   and is provided in Appendix D. The 12 states include: California, Florida, Illinois, Iowa, Massachusetts, Michigan, Minnesota, New Jersey, New York, Ohio, Rhode Island, and Texas. These states were chosen for one or more of the following reasons: geographic proximity to Connecticut, similar average number of charges filed, similar organizational structure, and/or representing a different geographical region of the country. Table V-2 compares Connecticut to the 12 selected states with respect to organizational structure and role in enforcement.

For the 12 states reviewed, the program review committee found that most commission members play some role in the enforcement process. (Information on each state's enforcement process is provided in Appendix D). In some states, the commission or board bears the responsibility of making final determinations of reasonable or probable cause. Commission staff investigates cases filed by the charging parties and presents their findings and recommendations to either the full commission or a subcommittee. The commission then serves as a quasi-judicial panel that renders a determination in the case. In other states, commission staff issues determinations without the review of the commission.  In cases where the staff find probable cause but are unable to forge a conciliation agreement between the two parties, the commission members will hold a hearing to decide the case and award damages if applicable. Staff decisions can also usually be appealed by either charging party to the commission. Overall, the structure of Connecticut's Commission on Human Rights and Opportunities is organizationally consistent with civil rights agencies in other states, although some distinctions surface with respect to the role in the enforcement process. 

Conclusion

The direct line of accountability from a commissioner to the governor is appealing in its simplicity.  However, given CHRO's role in approving state agency affirmative action plans, including the office of the governor’s plan, an argument could be made that the governor should not be appointing a single commissioner to run CHRO with its current duties.  This study did not encompass the affirmative action plan work of the commission. Thus, the committee  does not recommend such structural changes. 

However, the committee believes the current commission with five new and four experienced members, along with a new executive director, are in a position to work together to promote the effective and credible enforcement of civil rights law in Connecticut. The 1998 legislative changes clarifying the status of the executive director provides the commissioners with a clearer statement of their role over the director.  With improved data gathering and reporting, as recommended in a following chapter, the commission should receive relevant and up-to-date information upon which to assess the performance of the executive director and the agency.  

The committee proposes one change with respect to structure.  To strengthen accountability and make CHRO more in line with other similar Connecticut commissions, the program review committee recommends the appointment of CHRO commissioners be subject to the advice and consent of either house of the General Assembly.

CHRO DISCRIMINATION ENFORCEMENT PROCESS

Because of all the recent statutory changes mentioned earlier, the program review committee focused on how CHRO was implementing the enforcement process.  The current CHRO enforcement process, described in detail in Chapter IV, has several basic components:  complaint intake; an answer to the complaint from the respondent; an early merit assessment review (MAR); investigation to determine whether or not there is reasonable cause to believe discrimination occurred; and, if necessary, a public hearing at which the alleged violation is administratively adjudicated.  Many of these steps have statutory deadlines.  At any point in the process, the parties can settle the complaint.

In reviewing the operations of the enforcement process, the program review committee  found improvements could be made to the implementation of certain aspects of the process, particularly in the steps prior to the public hearing.  The areas discussed below include:  intake and merit assessment review (MAR); post-MAR investigation, especially the intermingling of mediation and investigation; the human rights referees policies; and assessing user satisfaction.  Where useful, additional descriptive information is provided, along with recommendations.

Intake and Merit Assessment Review (MAR)

Perhaps the most significant recent change in the enforcement process has been the institution of MAR.  The purpose of MAR is to allow CHRO to dismiss some cases without full investigation under certain circumstances. This change was intended to speed up case resolution and provide effective early case disposition. MAR standards and their implementation are important as MAR dismissals are the most common type of complaint disposition making up approximately 40 percent of all case closures.  

Thus, the early stages of the complaint process are critical.  The committee examined two aspects: 1) the importance of intake with the advent of the MAR step and its standards, and 2) the timeliness of the MAR process.  

Importance of intake.  To begin the complaint process, an individual may contact CHRO either by phone, mail, in person, or through a legal representative. An investigator handling intake will elicit the individual’s story and go over certain jurisdictional questions to ensure proper filing. However, as a matter of policy, CHRO instructs its staff to advise a complainant he or she has the right to file a complaint regardless of what the intake investigator thinks about the case.  

At this point, a formal complaint is drafted. Depending on the complainant's circumstances and/or preference, the complaint may be drafted by the intake investigator, the complainant's attorney (if he or she has one), or the complainant. These varied ways in which  formal CHRO complaints are drafted obviously can affect the clarity and comprehensiveness of any given complaint. 

As it is currently administered, MAR evaluates complaints on the substance of the written materials collected at the start of a complaint. These include the formal complaint, the respondent's answer (often prepared by legal counsel), and any rebuttal to the answer by the complainant.  While the complainant has 15 days to respond in writing to the respondent’s answer to the complaint, the original complaint is the primary statement of the complainant’s allegation.  There is no provision in the MAR process for the MAR investigator to talk to the complainant. Before the MAR process was instituted, any deficiencies in the complaint could be addressed as part of the investigatory process.  However, the creation of the MAR process elevated the importance of the original complaint.

With this documentation, the enforcement staff determines whether the case should be retained for further investigation or dismissed for one of the following reasons:

1) the complaint states no claim for relief;

2) the complaint is frivolous on its face; or

3) there is no reasonable possibility that reasonable cause will be found that a violation of law has occurred (C.G.S. §46a-83).

In reviewing the application of these standards, the committee found the agency has provided investigators limited guidance documentation. In the CHRO investigator policy manual, there is a merit assessment form to be prepared for each complaint to explain why a case was retained or dismissed.  Based on the commission form that must be filled out for each MAR decision, the MAR investigator is to [2] :

·        “Assess the likelihood of each party being able to prove the allegations asserted”;

·        “Assess the value of the alleged proof upon the reasonable cause determination. Principally, this is achieved by the investigator assessing the sufficiency of the alleged proof to establish each of the material issues of dispute." “Unsupported assertions, speculations, and conjectures should not be credited.  Each assertion must be supported by the alleged facts upon which it is based.”

To the extent the standards are understandable, they demonstrate the importance of a complete and well-drafted complaint.  The guidance that “unsupported assertions” should not be credited could potentially lead to a legitimate, but incomplete complaint, being dismissed.

The committee was troubled this summer when after asking the then-deputy director for enforcement what additional guidance CHRO staff was given to apply the MAR standard, he sent to the committee a one page policy statement he acknowledged had never been included in the policy manual.  It was entitled “Policy: Merit Assessment Review Reasons for Retention”.  That policy statement was subsequently revoked by the new executive director.

Furthermore, although the MAR process has been in statute since 1994, no regulations have been developed to inform the public about how the process works. In addition, current CHRO regulations that in effect have been superceded by MAR have not been updated.

An example of an intake-related problem created by MAR involves the complainant rebuttal step.  A key respondent defense to a discrimination charge is to show there was a non-discriminatory reason for the action taken.  Evidence of “pretext”, that the non-discriminatory reason was just a cover for a discriminatory action, counters that defense.  Before MAR, the regulations called for a CHRO investigator to actually review the respondent's answer to the complaint with the complainant, in part to identify any pretext possibilities.  Although this regulation is still on the books, the MAR process as currently administered does not allow for that kind of communication. Any rebuttal to the respondent's answer, which must occur within 15 days, is left solely up to the complainant.

Given the MAR process and standards, the committee concludes CHRO needs to ensure the intake phase is as strong as possible. The program review committee believes clearer agency policies, staff training, and closer management oversight is needed to promote confidence in this process. Recommendations in these areas are discussed later in this chapter.

MAR timeliness. As of July 1, 1998, CHRO is required to make a determination on a complaint within 90 days of receiving the respondent's answer. Previously, however, the 90-day MAR period began when the complaint was filed. This standard was in effect in FY 96 and FY 98, the years the committee selected to review complaints filed to examine the timeliness of this first phase. 

Table V-3 summarizes and breaks out MAR dismissals by when they occurred. As the table shows, a large portion of MAR dismissals occurred within the statutorily required 90 days. The percentage of complaints being dismissed within the 90-day period increased from 43 percent in 1996 to 51 percent in 1998.

The table also presents MAR closures between 91 to 100 days for both years. A comparison of time frames reveals that many determinations were made in the 10 days just following the 90-day deadline. As noted in the table, in 1996 there were 449 (43%) MAR dismissals during the 90-day period.  There were slightly more MAR closures, 465 (45%), in the following 10 days. In 1998, the number of MAR dismissals made between 91 to 100 days was significantly reduced, to 21 percent of MAR closures. This suggests the agency has made improvements in meeting the statutory time frame. However, the number of MAR closures after 100 days indicates improvements are still needed.

Regional differences. The committee also examined the data by regional office and found variations in the number of determinations in the two time frames. Table V-4 illustrates these differences for the MAR dismissals in 1996.  As the table shows, each region issued approximately the same total number of MAR dismissals. However, regional differences appeared between the Bridgeport and Norwich offices compared to Hartford and Waterbury in terms of time frames. The data suggest both Bridgeport and Norwich had a disproportionate number of MAR dismissals in the 10 days following the 90-day time frame.  In particular, Bridgeport made the vast majority of its MAR dismissals after the 90-day deadline.

Committee examination of case processing time information for 1998 (Table V-5) revealed a marked improvement in timely MAR closures in Region 4 from 1996. Bridgeport also improved but continued to make more MAR dismissals in the 10 days following the MAR deadline. Without closer examination of the case files in those regions, it is difficult to determine the causes for regional differences. It may be a staff resource issue, experience or training, or the difficulty of cases. Nevertheless, regional differences were still evident.  

Enforcement staff views.  The importance of intake and MAR is also appreciated by CHRO enforcement staff.  Sixty percent of the enforcement staff responding to the program review survey stated the MAR process provides effective early case disposition. Forty percent said the MAR process helps control the case inventory. Twenty percent, though, felt MAR was unfair to those without legal representation.

Much of the supplemental written commentary supplied by enforcement staff in the program review survey also involved the intake and MAR phase. Many of the comments focused on MAR staff and competency:

"Raise the bar on [staff] qualifications - especially for those individuals in the MAR unit...The MAR unit needs workers with legal analytical skills"

"We must have a competent MAR staff"

"More can be done at the intake phase to clearly establish the reasons a complainant believes illegal discrimination has occurred. In order for this to occur, the MAR unit must be comprised of competent individuals with strong interviewing, writing, and analytical skills"

"More emphasis needs to be placed on the intake process - better quality staff - better trained staff - this affects the investigatory process ......"

"The quality of the complaints taken at the intake stage needs to be improved, starting with the staff which is hired to work in this position. The same is true with respect to the MAR staff"  

The intake and MAR steps were also discussed at length at the program review focus group. One concern mentioned to the committee by both complainant and respondent attorneys who attended was the inconsistency of MAR decisions—both sides noted there was no predictability about the conclusion CHRO would reach in any given case.

The critical nature of the MAR process was also recently examined in a Connecticut Superior Court case in the summer of 1999.  In Gilberto Torres v. Connecticut Commission on Human Rights and Opportunities, the court was asked to rule on the constitutionality of the MAR process. Among the issues before the court in Torres was whether the MAR dismissal provisions of  §46a-83 were unconstitutionally vague. The court held the MAR process was constitutional. 

Although the decision affirmed the agency's authority and practice, the program review committee believes the lawsuit highlights the significance of MAR to individual civil rights. As such, the committee concludes CHRO should place more emphasis on this phase and ensure determinations being made at this level are completely sound and consistent.

Given that most of the MAR process relies heavily upon filed documents, it is imperative that the quality of the paperwork and the substance of the underlying complaint are solid. Therefore, the program review committee recommends CHRO re-evaluate its guidance documentation for investigators and maintain well-trained staff at the intake and MAR stages to ensure all cases receive full and consistent assessments in all regions. MAR activities should be closely monitored to detect unintentional over- or underscreening of complaints and to identify any problems in regional application of standards. The agency must also ensure commission members are kept informed of MAR activities on a periodic basis as prescribed by C.G.S §46a-83(b). (Additional recommendations affecting this area are presented later.)

MAR reconsiderations. If a complainant does not accept the agency's decision for a MAR dismissal, he or she may file a request for reconsideration with CHRO within 15 days of the decision. The request along with the case file is sent to the Special Enforcement Unit (SEU) at CHRO. State law requires the agency to complete its reconsideration decision 90 days after the MAR decision is made. If SEU upholds the MAR dismissal, the complainant's only recourse is to appeal he administrative decision to court. [3] If SEU agrees that the MAR decision should have been different, the case will automatically be retained for investigation.  Requests for reconsiderations may also be filed after a full investigation.

The committee examined reconsideration decisions from data taken from the agency's automated information system. In 1996, there were 303 reconsiderations filed; 205 were MAR reconsiderations.  Eighty-four percent were denied. In 1998, the total number of reconsideration requests filed decreased to 177, including 111 MAR reconsiderations. Seventy percent were denied.

Figure V-1 presents the agency's compliance with the 90-day reconsideration requirement for MAR dismissals. As the figure illustrates, CHRO completes a large number of reconsiderations within the 90-day period with a small number of decisions following in the next ten days. However, there are a significant number of MAR reconsiderations being made well after the 90 day statutory timeframe. This seems to have somewhat improved in 1998 where there are considerably fewer MAR reconsiderations decided after 180 days.

Other early closures. In addition to MAR dismissals, complaints are closed in other ways early in the process.  This means the number of complaints that actually get to the “full investigation” stage of CHRO’s enforcement process is significantly less than the number of complaints filed.  In FY 1996, 48 percent (1,191 out of 2,493) of the cases filed were closed within 100 days of filing; in FY 1998, 37 percent (902 out of 2,457) of the cases filed were closed during in that same time frame.  Table V-6 shows the incidence of early non-MAR closures for two years.  While about 70 percent of these early closures were MAR dismissals, the other types of early case closures include the following: 

No reasonable cause (NRC): At this early stage, this closure type means the case was not within CHRO’s jurisdiction. This fact was known either at intake or soon thereafter, but the case was still filed. Typically, the respondent in this situation will receive notice of the complaint but also will be advised by CHRO that no answer is required as the case will soon be closed;

Withdrawn with settlement (WDWS):  This closure type means the complainant has withdrawn the complaint, but there is a settlement between the two parties;

Withdrawn: This closure means the complainant has withdrawn the complaint;

Pre-determination conciliation (PDC): This is an agreement reached between the parties any time before the investigation completion deadline.  The agreement must be acceptable to the CHRO investigator; and

No fault agreement (NFA): This case disposition must occur before the respondent’s answer, and involves a written settlement agreement between the parties.  

In 1998, nine percent (78) of the cases resolved within the first 100 days were closed due to a no reasonable cause finding, compared to 11 percent in 1996. The closures that indicate some kind of settlement was made within the first 100 days consist of withdrawn with settlement, predetermination conciliation, and no fault agreement.  In 1998, combining these closures results in 98 cases being closed by settling, 11 percent of all case closures in the first 100 days.  For 1996, the settled case portion was seven percent. Finally, four and five percent of the cases resolved in the first 100 days of 1998 and 1996 respectively were either withdrawn by the complainant or administratively dismissed.

Complaint Investigations

The committee focused on two areas with respect to post-MAR investigations: case processing timeliness and the use of mediation during the investigations phase.  

Timeliness.  Once a complaint has been merit-reviewed and retained, it is assigned to an investigator in the Full Investigations Unit. Since 1994, for cases retained after MAR, the “executive director or his designee shall determine the most appropriate method for processing any complaint pending [after MAR]...” C.G.S. Sec. 46a-83(c). The statutory possibilities are:  

1) mandatory mediation sessions;

2) expedited or extended fact-finding conferences;

3) complete investigations; or

4) any combination of the above.    

The stated purpose of these methods is to: 1) find facts; 2) promote the voluntary resolution of complaints; or 3) determine if there is reasonable cause for believing that a discriminatory practice has been committed. Currently, the statutory deadline gives an investigator 190 days from the MAR decision to make the reasonable cause determination, or otherwise resolve the case. For the two years in which the committee  analyzed case outcomes and timeframes, FYs 1996 and 1998, the investigation deadlines were different.  In FY 1996, the cause deadline was 270 days after complaint filing, with a possible 90 day extension.  In FY 1998, the deadline was lengthened to 365 days, with a possible 180 day extension.

Table V-7 shows the program review analysis of the investigatory closures occurring after 100 days from the complaint’s filing, using the applicable deadlines.  The table shows:

·        In 1996, 62 percent of all case closures occurred before the extended deadline; the remaining 38 percent were closed after the deadline.

·        In 1998, 98 percent of all case closures so far have occurred before the extended deadline, with only two percent after the deadline.

·         In 1996, 56 percent of all no reasonable cause findings were made after the extended deadline, compared to 5 percent in 1998 (the 1998 figure may rise somewhat for complaints filed later in that fiscal year).

·        Regarding closure type, 40 and 44 percent of all the complaints closed in 1996 and 1998 respectively were closed through settlement.

·        If the number of reasonable cause findings were added to the case closures as a case “disposition type”, they would represent 11 percent of case dispositions in 1996 and 15 percent in 1998..

Investigation and mediation.  As noted earlier, since 1994, CHRO statutes have authorized the executive director or his designee to determine the most appropriate method for processing any complaint retained after MAR.   The statutory possibilities include: mandatory mediation sessions; fact-finding conferences; and complete investigations.    

The CHRO statutes have always contemplated both investigation and voluntary resolutions of complaints.  Specifically, conciliation has long been a required step by the investigator after a reasonable cause finding. The concept of active investigator involvement in settlement attempts prior to a cause finding has evolved at CHRO.

For example, beginning in 1989, CHRO statutes have authorized fact-finding conferences. One benefit of fact-finding conferences is getting the parties in the same room, which can be a first step toward settlement. The options of no fault and predetermination conciliation, described in regulation, also acknowledge the possibility of settlement.

It wasn’t until 1994, though, that the term “mandatory mediation” was added to CHRO statutory authority during the investigative stage.  The term "mediation" can refer to a spectrum of activities ranging from simply getting the two sides into one room to meeting with each side separately and confidentially, and proposing solutions. The “mandatory” in mandatory mediation refers to the requirement to attend the session; parties are not required to voluntarily settle. (It may be that mandatory mediation is used by some investigators as a procedural device to ensure the parties attend the fact-finding conferences. The statutes provide a penalty for respondents not attending mandatory mediation, unlike fact-finding conferences.)

The program review committee tried to determine how often the mandatory mediation provision was used as opposed to a regular fact-finding conference.  However, this was not possible given the inconsistent recording of activities in the automated case tracking system. Through interviews, the committee is aware that its use is varied among investigators.

Mediation has been defined as the “intervention of an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist contending parties in voluntarily reaching their own mutually acceptable settlements of issues in dispute”. [4] At CHRO, the investigator who is also the mediator clearly has “authoritative decision-making power”—he or she might ultimately be making a finding of reasonable cause. In fact, the statutes explicitly authorize the investigator to make such cause determinations. (C.G.S.§46a-83 (d))

As most CHRO investigations now consist of fact-finding conferences where all relevant parties are supposed to be in attendance, and the parties theoretically can hear what the respective positions are, it is easy to understand why, depending on the circumstances, the stage is set for CHRO staff to attempt assisting the parties to settle the case.  Problems arises in two ways.  First, mediation requires the parties to trust the mediator; in particular, the parties must trust that whatever they tell him or her will only be used to aid in mediation and will not be used against them elsewhere.  Under current circumstances, if the mediation doesn’t work, the parties will have a CHRO investigator determining reasonable cause who was told things as a mediator that an investigator would not have been told or that the parties would not have conceded.  Alternatively, the possibility exists for an investigator, acting in a mediation role,  to convey to either of the parties even unwittingly the message that if a particular settlement isn’t reached, they may have regrets if a reasonable cause decision is made.

The program review committee finds the use of mediation during the investigative, pre-reasonable cause stage is not well-defined in CHRO policy manuals or training and allows the same person with responsibility to determine cause to mediate. At minimum, mixing of investigator and mediator roles can create a perception of conflict for the parties.  Conflict aside, because the two activities are so different (mediation and investigation), different skills and training are required.

In other CHRO arenas, the processes are kept separate. At the public hearing level, mediation is separated from adjudication. If the parties express a desire to mediate to the presiding human rights referee, they work with a different hearing referee.  CHRO’s legal office has a settlement unit, where specifically designated attorneys work on cases that are identified as possible candidates for settlement.  If those efforts fail, other lawyers are appointed to represent CHRO at public hearing.

Similarly, EEOC in the past few years has developed and offers as part of its complaint process a mediation track.  A very important component of that program is that mediation is kept separate from any investigation procedures—the same EEOC staff assisting in mediation cannot be involved in any investigative activity.

Finally, the use of mediation among the regions is different.  Until 1998, the regions had MAR staff attempting mediation after MAR retention.  Two regions told the committee they stopped doing this last year because the time spent by the MAR person to mediate cut into the investigator deadline.  However, another regional office indicated it still makes those attempts, with the MAR person having no more than 30 days to try to settle.

The option of mediation clearly makes sense in any conflict resolution process. Early mediation efforts can be useful in certain kinds of CHRO cases, such as employment terminations where reinstatement is sought.  Settlements aided by mediation avoid the escalating costs of continuing through the CHRO process.  After a CHRO complaint is filed, the respondent’s answer preparation incurs a cost to the respondent, especially if it involves legal counsel.  Assuming the case is retained after MAR, the fact-finding hearing can be costly when respondent personnel might have to appear, documentation is produced, and legal counsel is used.  Finally, the next risk is whether a finding of probable cause will be made, which will trigger a public hearing consuming more time and resources for both sides. Therefore, early attempts at settlement can cut down on the costs to the parties.

To the extent investigators are under pressure to resolve cases, that pressure alone could challenge their neutrality, regardless of their good faith.  When discussing the idea of separating the two functions with CHRO staff, the response was that it wouldn’t be fair to give all the “easy” cases to some (cases to settle) and all the “hard” ones to others (cases that don’t settle). There is less of a concern when caseload and case closure numbers are not such a significant part of staff evaluations (discussed later in the chapter).  If the cases were separated by difficulty, the cases that could get done would be completed early, the cases needing attention would receive it, and both the process and outcomes would be enhanced.  Taking these points into consideration, program review recommends that CHRO separate the mediation and investigations components, and establish clear and consistent policies on mediation activities.  The commission should incorporate these policies into the agency’s training curriculum.

The new executive director reported to the program review committee that she had planned to request additional investigator positions for the regional offices, but was thwarted for the moment due to the Office of Policy and Management hiring freeze. She wanted two new investigators per office, with one person doing strictly mediation and conciliation work.  On promoting early mediation efforts, many forms used by CHRO reference opportunities for settlement.  One of the initiatives CHRO management told the program review committee about is the formation of a forms revision committee that is working on these forms to make the option of early mediation more noticeable.

The attorney roundtable conducted by the program review committee identified a seemingly small and easily remedied problem that could impede early settlement.  The respondent lawyers often cannot tell if complainants are represented by counsel. CHRO regulations indicate the sending of the notice of appearance form that each complainant’s lawyer fills out is the complainant’s responsibility, and this does not always happen.  The respondent lawyers reported it is helpful to be able to talk to a complainant’s lawyer as soon as possible.  The program review committee recommends CHRO make sure that respondents are informed when complainants are represented by counsel when the respondent is notified of the complaint.

Reconsiderations after full investigation. As noted previously, state law allows a complainant to request reconsideration after a finding of no reasonable cause. CHRO has 90 days from the date of the cause finding to make its decision. If the reconsideration is granted, the case returns to the regional office. Otherwise, the case is closed.

The program review committee examined the number of "no reasonable cause" reconsiderations granted and denied in 1996 and 1998 from the agency's automated system. Table V-8 compares "no reasonable cause" reconsideration timeframes for 1996 and 1998. CHRO does complete a significant percentage of reconsiderations within the 90-day statutory timeframe. However, the agency appeared to decide a larger percentage in 1996 than in 1998.

It is also interesting to note that in 1996 the agency denied 84 percent of reconsideration requests while in 1998 the percentage has leaned slightly to granting reconsideration requests. It is unclear if this is because more errors are detected or the reconsideration review standard changed.

            CHRO has reported to the program review committee  that reconsiderations have been an issue. As described previously, all reconsiderations are handled by the Special Enforcement Unit in Central Office. This unit has recently undergone staffing changes and the function of reconsiderations will be moved to the commission counsel office. 

Human Rights Referees

The addition of permanent full-time human rights referees is a recent change for the enforcement process. Created by P.A. 98-245, the seven referees are separate from the CHRO administrative structure. However, their role in the system significantly impacts the CHRO enforcement process.

The enabling legislation outlined the terms and conditions for the referees' qualifications and compensation. The referees have the powers granted to hearing officers by statute. There is no mention in the statutes regarding operating policies and procedures for the referees.

One of the underlying purposes in the creation of the Public Hearing Office was to control and eliminate the case backlog. Currently, the public hearing phase, unlike the other phases of the enforcement process, operates without statutorily imposed deadlines. Interviews with parties having experienced the public hearing process since the inception of the referees indicate that more structure is needed.

In order for any organization to operate efficiently and effectively, there must be clear operating guidelines, procedures, and practices. This ensures that all parties fully understand the process and know what is expected of them. To be successful, any adopted policies and procedures must be well communicated and those implementing them must be uniformly trained. Therefore, the program review committee recommends the Chief Human Rights Referee establish uniform operating policies, procedures, and guidelines clearly defining the role and function of the Public Hearing Office. Adoption of any changes to the policies and procedures shall be duly communicated to the full Commission on Human Rights and Opportunities. It shall be the responsibility of the Chief Human Rights Referee to ensure all human rights referees are adequately trained in the uniform implementation of the policies and procedures.

The CHRO administration and the Chief Human Rights Referee both acknowledge the need for clarification of roles and standardization. The agency has reported to the committee  that it intends to address this issue in its legislative proposals for the upcoming General Assembly session.  

User Satisfaction Survey

            One way to measure a system's use and effectiveness is to obtain input from the people who have experience with it.  Currently, the only formal method for public opinion input regarding CHRO operations is through the commission meetings. The commission, at its discretion, may allow members of the public to voice their concerns. However, ongoing formal evaluation of the process by the parties actually using the system is not done. 

            The committee  believes routine assessment of the system by those who participate in and navigate through it is a good method of performance evaluation.  An example of this type of assessment is the judicial evaluation process conducted by the Judicial Department, in which judges are evaluated by attorneys who practice before them and jurors who serve in trials they preside over. This idea was well received by the program review focus group of attorneys for both complainants and respondents. It was viewed as a good first step to ensuring parties’ concerns about the process are heard. An evaluation process would also help management identify potential problems and/or inconsistencies found in the process agencywide as well as by region.

Therefore, the program review committee recommends CHRO institute a follow-up evaluation form for parties involved in the complaint process to provide feedback on their experience with the agency's handling of discrimination complaints. The process should offer the parties to the complaint a confidential forum to submit observations, suggestions, concerns, and comments directly to central office management.  The information should be reviewed and summarized on a periodic basis and results shared with the regions and the commissioners.

CHRO MANAGEMENT

Many management functions support the discrimination complaint process. Among them are: staff performance standard setting and evaluation; staff development and training; agency policies and procedures documentation; regulation making; and management information system development. The committee believes internal supports in these areas are lacking. There appear to have been laudable efforts in the early to mid-1990s to try to establish consistent written policy and guidance materials, along with efforts to train staff. However, the drive behind these initiatives seemed to disappear, and implementation dwindled.

As a result, the agency at the moment is left with unfinished guidance documents, out-of-date regulations, an overwhelming number of policy statements and forms (some used, some not), an inadequately implemented management information system, and haphazard professional development.  In this section, the committee discusses these areas, as well as the internal discrimination complaint process for CHRO current and former employees, and makes recommendations where appropriate.

Staff Performance Standards and Evaluations

The productivity of each enforcement worker impacts the agency's overall effectiveness.  An increase in worker productivity may allow the agency to handle more cases and, conversely, a decrease in individual employee production may result in a reduction in the agency's ability to close cases. Production standards are commonly used by civil rights enforcement agencies around the country, including Connecticut.  In response to program review staff queries, California, Illinois, and New Jersey reported the use of staff production standards but would not release what they were. New Hampshire, Missouri, Alaska, Oklahoma, South Carolina, and Texas each have production standards of four or five case closures per month. Higher standards exist in Wisconsin and Nevada, which required 12 and 15 closures per month respectively.

In contrast, Minnesota has recently abolished its production standards, previously requiring six closures per month or 75 annually. Michigan also reported recently abolishing production standards while Iowa, Ohio, and Michigan each reported not using them.  The experiences in other states are offered for background purposes. Comparisons between production standards in other jurisdictions are difficult because of differences in intake procedures, requirements for closures, methods of counting cases, and other variations.

The Connecticut Commission on Human Rights and Opportunities first instituted numerical standards for case production in 1977.  It required six case closures per month for a total of 72 closures per year. This was reduced several years later to five case closures per month due to an increase in intake duties. This standard has been used as part of an employee's performance evaluation.

The use of production standards has been recognized as an issue for some time.  A 1988 Governor's Task Force Report on CHRO [5] found the numerical performance standard affected the services provided by the agency. The task force concluded the numerical standard provided no incentive to an investigator to find cause, but rather the temptation to reduce the caseload by finding no cause, on the theory the latter was a faster disposition. The task force recommended CHRO examine the numerical performance standard and develop new guidelines for performance evaluations. Until recently, the use of production standards was still in effect.

The issue of quotas was again listed as a CHRO staff concern in a 1999 independent consultant's report [6]   on the agency's operations.  In that report, 15 percent of the staff interviewed identified the impact of the quota system on the quality of work as a concern.

In the program review survey of the 32 field enforcement staff, 60 percent of those responding believed the use of the staff production standards is unrealistic and unfair. Although the committee does not have empirical evidence suggesting the production requirement influences the complaint disposition, it is reasonable to assume, as did the previous 1988 task force, that individuals being evaluated on the basis of such standards would feel pressure to meet them.

The committee believes the use of a quantitative production standard for enforcement staff carries some risks. A numerical standard may encourage investigators to first focus on cases they can close quickly or easily. For example, in order to meet the monthly production standard, an investigator might select several simple cases rather than concentrating efforts on one complex case.  Although all cases would eventually get investigated, the more difficult ones may be left to languish and deteriorate. Another possible unintended consequence of the production standard could be an adverse effect on the quality of case investigation.

Of course, the production standard predated the statutory deadlines built into the complaint process.  In light of time frame standards, production standards may be irrelevant as a case management tool.

The current CHRO administration has told the committee that production standards are no longer in use. At the committee’s public hearing, the CHRO executive director informed the committee that she had recently “spearheaded a committee comprised only of investigators to develop appropriate, non-numeric, performance criteria.”  The committee supports the discontinuation of evaluating staff performance on numerical standards. CHRO should establish performance standards reflecting the quality of the work and/or the difficulty of cases as well as effective caseload management,  such as regular and timely activity.

A production standard can focus an enforcement worker's attention on one of the agency's primary goals -- closing cases in a timely manner -- and provide important incentives for enforcement staff to work as efficiently as possible. However, given its possible negative effect, the committee believes the agency needs to look for other ways to increase production, including but not limited to, appropriate employee training, proper oversight on the part of managers, and, if necessary, shifting of resources in case processing.

Staff Development and Training

Another area the committee explored was training and development opportunities for enforcement staff.  At every stage of the complaint process, enforcement workers must deal with many difficult legal and technical issues with significant potential impact on an individual's civil rights.  Successful case resolution is dependent to a large extent on the ability and resources of the worker.

CHRO enforcement staff is almost evenly divided by background and years of experience. As Figure V-2 shows, 12 of the current 32 enforcement workers (38 percent) have been with the agency more than 10 years. However, 17 (53 percent) have less than five years at CHRO, with nine hired within the last three years. Of the 32 enforcement investigators, 12 are attorneys.

The most recent group of hires spent 2-3 weeks in orientation sessions taught by the former deputy director of enforcement. The sessions were based mainly on the agency policy manual. Workers then joined a regional office and commenced casework.

Interviews and examination of agency materials indicate CHRO does not have a formal training curriculum for its enforcement workers. The program review committee requested information on the types of training either provided or paid for by the agency for current CHRO employees since 1995.  Other than DAS training, which largely involves computers and general topics, the agency was not able to produce a comprehensive report about enforcement-related training.  Instead, each staff person was asked to self-report on training received. The information received revealed staff attendance at different types and levels of training suggesting variable levels of skills and knowledge.

The program review committee found training opportunities have varied for existing employees. The agency does not provide a formally structured training program or a cohesive training manual to its enforcement staff. In addition, CHRO has not conducted a formal training needs assessment for its staff.  The committee believes that a lack of comprehensive core training and ongoing skills development may be one factor impeding the agency's effectiveness. All these factors point to a need for employee training and development, for both new and experienced staff.

This is further evidenced by the results of the 1999 consultant report. Twenty percent of the staff mentioned a need for consistency across sites and training in new policies, procedures, and relevant laws. Twenty-nine percent desired clearer pathways for career and professional development. Furthermore, they indicated there are few incentives to pursue professional development and few opportunities to enhance performance on the job.

The program review survey results amplify these findings.  In the committee's questionnaire, investigative employees were asked to what extent they agreed or disagreed with various statements.  Table V-9 presents the results of responses relating to training.

 

As the table indicates, two-thirds (66%) of those responding to the question disagreed that CHRO provides relevant training to its enforcement staff. Almost all of the workers disagreeing with the statement had more than five years of experience.

It should be noted, however, 60 percent of the enforcement staff agreed their co-workers had the skills and abilities to their jobs (Table V-10).  Forty percent disagreed, with half strongly disagreeing.

The committee  compiled information about training opportunities and requirements for enforcement staff in other states. Of the 12 states surveyed in detail, four had training administrators or staff assigned to training and staff development. Almost all had core curricula developed internally and taught by in-house staff. However, the states offering formal mediation by agency staff sought training by outside specialists. Initial training for new enforcement staff ranged between one week to eight months with an average of two to three weeks.

Investigation of discrimination charges is a difficult job requiring many skills. In addition, the field of civil rights law changes continually through both legislative and judicial activity. The agency also needs to be efficient, effective, and uniformly implement its policies and procedures to ensure every similarly situated person entering the system is treated the same. To accomplish this, CHRO must develop a formally structured training process to ensure enforcement staff uniformly understand and apply policies and procedures.

It is important that both the amount of training as well as the types expand. In addition to basic CHRO policy and procedures, all levels of staff should be kept informed of new state and federal case law. Training should be relevant and tailored to the staff function. As such, training for intake and MAR workers would require a different focus than investigators or commission counsel staff, although all should have a basic level of knowledge of the overall process.

Therefore, the committee  recommends CHRO conduct a formal evaluation of the current training curriculm and an assessment of training needs of the agency. Based on the evaluation, CHRO should develop and institute a comprehensive training and professional development program. This program should be designed to provide extensive training in civil rights law, investigative techniques, mediation, analytical methods, communication skills, and other necessary areas.  It should be tailored to fit the needs of enforcement staff at each level of the process including, but not limited to, intake, merit assessment review, and investigation. Training should also be provided to staff involved in the public hearing process including, but not limited to, commission counsel and human rights referees. In addition, CHRO should conduct ongoing assessments of training needs of the agency's enforcement staff. The assessment results should be monitored and used to adjust the training curriculum and to identify areas for staff improvement whenever necessary.  

Policies, Procedures, and Regulations

While state statute spells out many of CHRO’s authorities and responsibilities, like any agency, its regulations and internal policies and procedures are important to filling in the detail of CHRO practice.

            Policies and procedures.  In the early 1990s, CHRO management created two internal policy and procedure manuals for use by staff.  One is called the “Investi-GATOR Policies, Practices & Forms Manual” (Investi-Gator) and the other is called the “Field Operations Interpretive Guidelines” (FOIG).  It appears the original intent was to keep both manuals up to date.  Some of the Investi-GATOR forms have been revised, but the FOIG manual updates are lacking. 

In part, the “Investi-GATOR” manual reflected the new mode of investigation the then-new executive director brought to CHRO in 1991.  The manual combines policy directives, form letters for various participants in CHRO cases, and pre-formatted blank report forms CHRO staff was supposed to use to arrive at their conclusions about cases.  The manual is a significant effort to accomplish the four objectives identified in the manual:

1. “The policy directives are intended to unify the interpretation of statutes and regulations.”

2. “By reducing the policies and instructions to writing, CHRO employees will have continued guidance and support while processing complaints.  There will be no debate with respect to instructions which have been provided to staff in the event an issue arises regarding the propriety of the instructions.”

3. “By creating standard procedures and documents, the time expended on processing and completing cases will be shortened.”

4. “The documents contained in the manual will assist the agency in meeting the statutory nine (9) and twelve (12) month time frames.”

The committee observes the manual is quite voluminous and the combination of party form letters and other form material to be sent to parties blurs the impact of the staff guidance materials. The committee also finds there is very little guidance on mandatory mediation, how CHRO staff should handle the potential conflict of acting as both mediator and investigator, or on ways CHRO staff can encourage early settlement.

Field Operations Interpretive Guidelines.  The committee understands these guidelines are to be used by field staff as aids to understanding legal interpretations. First, many of the written interpretive guidelines are still in draft status even though they appear to have been developed years earlier.  Second, the guidelines are quite formally written, with numerous legal citations, raising the question whether the style of presentation hinders their usefulness for investigators in the field.

The program review committee is aware some forms are currently being revised for a variety of reasons.  The committee recommends CHRO review both its Investi-GATOR manual and the Field Operations Interpretive Guidelines for ease of use by investigators in the regional offices, and ensure they represent current agency practice.

Regulations.  CHRO’s existing regulations were adopted in 1993.  However, significant statutory change in 1994 established the early merit assessment review process, which results in almost half of CHRO complaints being dismissed.  This change alone calls for regulation amendment.  The agency acknowledges its regulations are out of date.  CHRO management told the committee the position of legislative liaison/regulations specialist was vacant until recently filled.  The individual is scheduled to begin in January 2000 and the first task will be to update the agency regulations.  The committee supports this action.

Management Information System

Another important aspect in the effectiveness of CHRO is the ability of its information systems to adequately support its operations.  Every year CHRO handles hundreds of cases, most of which pass through a multi-step process involving different commission staff. In addition, both statutes and administrative policy impose restrictions on the amount of time the agency can take at various stages of the process. Therefore, it is critical that CHRO staff have a reliable way to track the progress of each case.

As part of its review, the program review committee examined the CHRO management information system used for enforcement. The committee looked at statistical reports generated by the agency's case tracking system, and interviewed CHRO personnel familiar with the program and involved with planning for future changes. In addition, through the process of analyzing CHRO case tracking data and extracting information from the system for the committee's own random case file review, the program review committee also learned about the system's capabilities and limitations.

The current management information system for enforcement has been in existence since 1993.  It archives the agency's entire case inventory and is used to produce statistical monitoring reports and, when necessary, customized inquiries.

The program review committee concludes the current information system could be a very useful management tool.  It seems to have the ability to produce useful progress and analytical reports. However, the committee finds the existing case tracking system has a number of deficiencies, including poor documentation and insufficient checks on data entry.

The program review committee asked the agency to provide written documentation for the system users and was told no such documentation was available. CHRO produced a list of the database tables contained in the system and the information fields that make up each table, but it could not locate further written descriptions of the fields' contents or explanations for code definitions.

The absence of documentation standardizing data input and methods for ensuring consistent code application became apparent in the program review committee's examination of the automated information. The committee 's case file review revealed the system's codes are not mutually exclusive and do not always aptly describe the status of complaint outcomes. In addition, there is a fair amount of discretion in handling and coding the complaints by the regions. There appears to be no uniform policy on coding complaints. In many instances, the automated information does not make sense unless the paper file is examined.

Given that the case tracking system is used in all the regions, the committee finds the lack of documentation and uniform application hinders the agency from understanding the system's internal operations. Therefore, the program review committee recommends CHRO re-examine its coding system. Specific codes should be developed with input from system users. Written definitions for each code should be provided to agency staff and training given to implement a uniform coding system to facilitate tracking of complaint trends and outcomes. Periodic analysis of these codes will allow the agency to identify problem areas. It should also help the agency evaluate its enforcement actions in response to complaints.

Another identified deficiency was the accuracy of stored data.  In reviewing the data extracted from the system for the committee's random case file review, the program review committee detected examples of data entry errors such as implausible dates and incomplete or missing information.

When asked about this issue, CHRO management stated that in the past maintaining the automated information system had become a lower priority as the regions were given more responsibilities and staff resources became assigned to other duties. In addition, managers were required by the former deputy director of enforcement to maintain manual tracking records of their inventory despite the existence of an automated system.

The program review committee also looked at a number of the routine statistical reports produced by the automated system and found they provide somewhat limited information. Although the existing computer system does allow for some analysis, the deficiencies of the coding method limit its usefulness. Currently, the department does limited tracking of trends and presumably adherence to mandatory timeframes. However, given the lack of uniformity in present coding and inputting, the program review committee concludes accurate tracking based on the automated system would be difficult. Therefore, the program review committee recommends clear accountability should be assigned for assuring consistent, uniform, and accurate data recording.

The purpose of a management information system is to produce essential information about organizational accomplishments in a readily useable format. MIS reports allow management to monitor the performance of the organization, evaluate any deviations from expected or desired results, identify necessary improvements, and implement corrective actions in a timely manner.

The consequence of an ineffective MIS is that decision makers, at all levels, fail to receive an accurate understanding of program operations and the degree to which a program is meeting its intended goal. Specifically, ensuring timeliness of enforcement actions would be difficult.

The committee believes CHRO could make better use of the data in its information system. The agency readily admits that its information system is somewhat problematic. The program review committee found that although the information system needs improvement, it contains the basic data needed to assess the performance of the department's case processing. As such, the agency needs to take full advantage of its current information system and re-examine it to better utilize its ability to monitor agency operations and quality assurance. Therefore, the committee recommends CHRO establish a uniform, automated management information system for the regions that captures essential enforcement case information and results in the production of valid, reliable data. The system, at a minimum, should include, but not be limited to, the following:

·        critical case processing milestones, such as MAR dismissal and retention dates, cause determination dates, and reconsideration and closed dates;

·        case information, such as attempts at mediation and whether parties have legal counsel;

·        case outcomes information, such as type of resolutions;

·        the ability to generate standard management reports on the timeliness and performance of individual personnel as well as regions in completing investigations; and

·        the ability to generate customized reports when necessary.

Legislative reporting.  An improved management information system will enhance the information the legislature obtains about CHRO activities.  At the outset of this report, the committee noted the significant management changes that have recently occurred at CHRO.  With these, the committee expects past turmoil preventing CHRO from paying attention to its core business of handling discrimination complaints will cease.  The timing of this study is such that information about the impact of recent legislative changes (e.g., full-time human rights referees and complainant’s right to seek release of jurisdiction after MAR dismissal), along with significant management changes, is impossible to measure.  Because of past controversies, though, it is imperative that the legislature be kept fully informed about CHRO activities. 

In its annual report, CHRO reports on case closure types and numbers of complaints filed, but never reports on the time frames for casework.  As of 1998, the legislature is requiring CHRO to annually report to it about the number of cases not meeting the statutory deadlines, and the reasons for those failures.  There are other performance indicators that would allow the legislature to review the impact of CHRO.  These include: the number of cases where there are job reinstatements; the number of cases in which backpay was awarded; and other types of “affirmative action” allowable under the enforcement remedy statutes.  In addition, even though much of the public hearing process is not subject to statutory deadlines, it is important for the legislature to know the length of time cases are pending at the public hearing stage.

CHRO should develop a set of performance measures to be used in evaluating the agency’s overall performance as well as all key components and phases of the process. At a minimum those standards shall address:

·        specific time frames for complaint handling, public hearings and outcomes; and

·        the components of settlements, such as job reinstatement, backpay, and other remedies.

Technological Resources

The need for technological improvements was reiterated in the 1999 consultant report where 19 percent of the staff cited inadequate equipment (computers) as a staff concern. The consultant report also indicated staff desire for updating, standardization, and equitable distribution of computer hardware and software.

The current administration has stated technology is one of its top priorities. Plans for technological improvements have been forestalled due to problems with wiring in some regional office locations. Nevertheless, the agency plans to resolve these issues and eventually provide each enforcement worker access to more computerized technology and research tools such as Westlaw and the Internet. The program review committee supports these plans and recommends CHRO continue to assess its technological resources and equipment needs for its enforcement operations and develop a plan for addressing those needs as determined. The plan should aim to enhance accurate information sharing between field operations, the legal services unit, and the public hearing office.

The agency’s limited technological resources can have a negative impact. The daily operation of the organization can be compromised by insufficient and outdated technology. Enforcement staff need a method to track their caseloads. It is also helpful to have information readily available when parties call regarding the status of a case. Perhaps most important, managers need reliable statistics about a region's inventory of cases and its productivity in order to detect problems and make necessary changes. Finally, the commission’s administration should have access to this information to support quality assurance.

Management and Regional Operations

Before any new policies can be successfully implemented, a strong communications network needs to be in place. Both the consultant's report and the program review committee survey found that CHRO employees have a somewhat unfavorable view of how information is communicated to staff. 

            One program review survey question asked enforcement workers to rate communication in the agency. The results are presented in Table V-11. As the results show, the staff generally view communications somewhat unfavorably.  

The consultant report also suggested this finding. The number one concern regarding management identified by staff was inadequate communication, few staff meetings, and not being informed by management.  It is important to note that the report was prepared at the beginning of the current administration and reflected the previous management. It does, however, suggest the need for enhanced communications. Improved communication was also the number one desired changed by staff for the new management in the consultant's report.

The consultant's report made a number of recommendations aimed at developing an effective infrastructure for organizational communication and dialogue including regular staff meetings for all work groups and quarterly meetings for the entire organization. The new administration has begun to institute these recommendations including the agencywide staff meetings. In addition, the newly appointed Chief of Field Operations, who works out of the central office in Hartford, has been directed by the executive director to visit each regional office once a month (one regional office a week).  Also, the chief is to hold regional manager meetings once a month, which will rotate among the regional offices.

The program review committee believes these are positive steps to improve communications among all staff. The executive director should continue to aggressively establish an effective communication network between and among all levels within the commission.

Staff Complaint Process

One issue raised during the study relates to employment discrimination complaints made by CHRO employees.  In part, the existence of any charges of employment discrimination at CHRO, due to the anti-discrimination purpose of the agency, seems incongruous to some. Another issue is whether CHRO employees have a reasonable process by which to exercise their rights to bring discrimination complaints if they feel they have been wronged.

The program review committee obtained information about how many complaints have actually been filed by CHRO employees (current or former) since 1990. Twelve former or current CHRO employees filed CHRO complaints against the agency in that time period. Table V-12 shows the years in which complaints were made.

Five complaints were closed with a finding of no reasonable cause. One was closed after the MAR review with a finding of no claim. Two were closed through administrative dismissal.  Three were closed with a right to sue determination. One was withdrawn with a settlement.

Five of the CHRO complaints became the subject of federal lawsuits, with the earliest filed in 1997 and the most recent in January 1999. Four of these suits are pending.  One was settled for the amount of $105,000.

 At minimum, the existence of discrimination charges at CHRO, as at any workplace, is evidence of conflict that for some reason could not be resolved through less formal methods.  As such, it denotes a problem for management, if not of management.  The fact that at least one of these complaints, filed originally in 1993, resulted in the state paying a significant settlement amount, is noteworthy.  Also, the circumstance surrounding one of the complaints is notable. The complaint, now pending in federal court, was brought by an individual who supervised at least one of the people named as respondents in the complaint.  The fact that former CHRO management allowed this conflict to continue is remarkable. 

Eleven of the twelve complaints mentioned above occurred under previous CHRO management and there is no reason to attribute any past missteps to the new management at CHRO.  It is instructive that the one CHRO complaint filed by a CHRO employee just days after the new director started in her acting capacity in March 1999 has already been withdrawn and settled.

CHRO employees have a process available to make discrimination complaints. In May 1997, a policy directive was issued setting out that process. It provided that, to comply with the CHRO/EEOC workshare agreement, any complaint filed by a CHRO employee would be deferred to EEOC for initial processing.  As the directive stated, the purpose of the policy was to “eliminate or at least minimize any possibility of a conflict of interest, real or perceived, when a complaint…is filed….alleging employment discrimination by the Commissioners, Executive Staff or employees of the commission.” Current CHRO management has told the committee  that the policy has changed and been communicated to staff that the employee now has the option to have EEOC or CHRO investigate the complaint.

The committee  contacted other states’ civil rights agencies to find out how they handle complaints filed by their own staff against them.  In some states, the complaints are handled like any other complaint; in others, they are deferred to EEOC; and in others still, an outside party handles them. 

In 1976, CHRO asked the Office of Attorney General for an opinion on whether CHRO could process a complaint filed against it by a CHRO employee charging a violation of state law.  The OAG said that because CHRO was the only agency with authority to handle such complaints, under the necessity of law concept, it had to handle the complaint.

With respect to the procedure, the OAG thought there was a way to proceed impartially.  First, it noted that the commission members or its executive staff would not have any dealings with the substance of the claim because “investigation of the complaint, determination of probable cause and conciliation endeavors are within the exclusive province of the investigator.”  The investigator assigned should have no connection to the complaint.

If the matter proceeded on to the public hearing stage, the OAG said the commission chair “should exercise his ministerial duty of appointing a hearing examiner to hear and decide the case.”  Because the hearing officer was a gubernatorial appointment, there was no concern about commission interference, because he had sole authority to decide the issues and order relief.

Finally, the attorney general would assign an assistant attorney general who had never represented the commission or the Department of Administrative Services before to “present the case in support of the complaint.”  Assistant attorneys general who normally represent the commission will defend the commission.  “The representation of state officials or agencies on opposite sides of a case by the Attorney General is not without precedent.”  

It is not clear to the program review committee that the current CHRO complaint process for CHRO employees filing complaints is a genuine problem.  It is true, as the 1976 attorney general opinion points out, that CHRO investigators have significant autonomy, and as long as the investigator has no connection to the complaint, or complainant, there should be no overwhelming conflict.  Any employee who files a discrimination complaint against his or her employer is in an automatic position of conflict at the workplace, so CHRO employees are not unique in that regard. Theoretically, CHRO management should know better than any employer the consequences for retaliating against someone for filing a complaint, itself a violation of law.  The commission might consider giving employees the option of the right of first refusal for the investigator selected.

Employee morale. An issue related to the internal CHRO discrimination complaint process is general employee morale.  In the program review survey of enforcement workers, conducted in October 1999, respondents were asked to rate their level of satisfaction with various aspects of employment at the commission. The results are shown in Table V-13.

A majority of those responding were satisfied with both the general work environment and their job overall, though one-fifth to a quarter of those responding counted themselves as dissatisfied. This is slightly less than the 31 percent of persons interviewed by the consultants who conducted the 1999 organizational assessment for CHRO, who noted concern about decreasing morale at the agency.  Those interviews were done in December 1998. 

The agency has begun some initiatives to improve the overall work environment such as holding regular agencywide meetings and instituting monthly labor-management meetings. Although it is too soon to tell whether particular initiatives will succeed, the program review committee gives the current administration credit for recognizing some deficiencies and refocusing attention on them.

Resources

Earlier in the report, the committee provided information regarding staffing trends at CHRO since FY90. The committee analysis found the level of enforcement staff has remained essentially the same although the volume of complaints coming into the agency during this same time period grew significantly.

In her public hearing testimony before the program review committee, the current executive director stated her intention to seek additional investigators within each region to better manage the growing case inventory and ensure that statutory case processing time frames would not be exceeded. However, she could not proceed with the plan because of a hiring freeze imposed by the Office of Policy and Management.

The agency is currently working on a projected needs assessment of enforcement staff resources. The agency's assessment is based on information in the automated tracking system, subjective data, and the assumption the MAR process remains unchanged. The executive director reported to the committee that she would like to add two new investigators per regional office, with one person assigned strictly to mediation and conciliation.  In addition, she stated her desire to augment intake.

These plans coincide with many of the program review conclusions and recommendations. The committee would add that re-examination and revamping of the automated tracking system may change the projections of staffing needs and reiterate the importance of enhancing the intake and MAR stages as well as expedited handling of reconsiderations. Therefore, the program review committee defers to the agency's management on how to best allocate its resources and recommends CHRO proceed with its plan to request additional staff resources.