AN ACT CONCERNING THE ADMINISTRATION OF THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES AND THE RESOLUTION OF COMPLAINTS FILED WITH SAID COMMISSION.

AN ACT CONCERNING THE ADMINISTRATION OF THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES AND THE RESOLUTION OF COMPLAINTS FILED WITH SAID COMMISSION.

This bill makes various changes affecting the Commission on Human Rights and Opportunities (CHRO). Among other things, the bill:

1. prohibits the governor from reducing CHRO's budget allotments and requires the Office of Policy and Management (OPM) to recommend appropriations for CHRO that reflect the agency's estimates of spending needs (§ 2);

2. sets an 18-month deadline for the presiding officer to render a final decision in discriminatory practice complaints that have proceeded to the public hearing phase, and requires the chief human rights referee to annually report on the number of cases that miss this deadline and the reasons why (§ 5(i));

3. requires the chief court administrator to designate judge trial referees (JTRs) available to hear discriminatory practice complaints and certain other CHRO matters and allows CHRO's executive director to appoint a JTR if there is a specified backlog of pending cases (§ 5(j));

4. allows the presiding officer to impose nonmonetary penalties on parties that do not comply with certain discovery orders (§ 5(h));

5. allows CHRO's executive director to assign commission legal counsel to represent the state's interests in any proceeding in which civil or human rights are at issue (§ 1(c));

6. allows the executive director, within available appropriations, to assign CHRO legal counsel to bring a civil action, instead of an administrative hearing, when doing so would be in the public interest (§ 1(d));

7. eliminates the requirement that a respondent's answer to a complaint be filed under oath (§§ 3 & 5(f));

8. modifies certain deadlines in the complaint process (§§ 4 - 6);

9. expands the grounds upon which a CHRO case may be reopened to include a party's fraud or other misconduct (§ 6(d)); and

10. makes minor and technical changes.

EFFECTIVE DATE: October 1, 2017, except the provisions on CHRO's budget are effective July 1, 2017.

The bill allows CHRO's executive director, through the supervising attorney, to assign CHRO legal counsel to represent the state's interests in any lawsuit or other proceeding in which civil or human rights are at issue. It allows CHRO legal counsel to intervene as a matter of right in any proceeding without permission from the parties, hearing officer, or court.

Under existing law, certain cases within CHRO's jurisdiction proceed to a public hearing phase (e.g., if the investigator makes a finding that there is reasonable cause to believe that discrimination occurred and the parties cannot reach a settlement). The bill allows the CHRO executive director, through the supervising attorney and within available appropriations, to assign CHRO legal counsel to bring a civil action instead of a case proceeding to an administrative hearing, if she determines that this would be in the public interest.

The legal counsel must bring the civil action within 90 days after notifying the parties of the executive director's determination. The action may be served by certified mail. The bill exempts such cases from certain conditions that apply to civil actions brought after CHRO has released a case from its jurisdiction (such as specific provisions on venue and the statute of limitations).

The bill limits the court's jurisdiction to the claims, counterclaims, defenses, or other matters that could be presented at a CHRO administrative hearing, had the complaint remained with CHRO. The bill allows the complainant to intervene as a matter of right without permission from the court, CHRO, or the other party. The case must be tried without a jury.

Under the bill, if the CHRO legal counsel determines that the state's interests will not be adversely affected, the complainant or his or her attorney must present all or part of the case in support of the complaint.

The bill allows a court to grant the same relief that would be available in a civil action after a case was released from CHRO jurisdiction. If the court finds that a respondent committed a discriminatory practice, the bill requires the court to order the respondent to pay CHRO its fees and costs, in addition to a civil penalty of up to $10,000. CHRO must use the funds from the penalty to advance the public interest in eliminating discrimination.

The bill requires the proposed CHRO budget that OPM submits to the legislature to be the estimates of expenditure requirements, together with any recommended adjustments and revisions, that OPM receives from CHRO's executive director. It bars the governor from reducing an allotment of appropriated funds currently in force for, or an allotment of appropriated funds requisitioned by, CHRO.

By law, CHRO's executive director may dismiss a complaint if the complainant refuses to accept a settlement offer where the respondent (1) has eliminated the discriminatory practice, (2) taken steps to prevent a similar occurrence in the future, and (3) offered full relief to the complainant.

In this situation, if the complainant has not filed a request for reconsideration of the dismissal, CHRO must release the complainant from CHRO's jurisdiction (thus allowing the complainant to bring a lawsuit). The bill shortens the time for the complainant to file the lawsuit, from 90 to 60 days after receiving the release of jurisdiction.

By law, CHRO may file a complaint against a contractor or subcontractor for alleged noncompliance with antidiscrimination laws or required contract provisions (e.g., affirmative action requirements). The bill requires the hearing conference on these complaints to be convened within 30 days after the date of the complaint, rather than 20 days as under current law.

Under the bill, in all CHRO cases, the complainant and respondent may engage in alternate dispute resolution for up to three months with the chief referee's permission. Under current law, this provision applies only to employment discrimination cases.

The bill extends the period, from 15 to 20 days after service of the complaint, after which a default may be issued against a respondent for failing to file a written answer.

Under the bill, each party to a CHRO hearing must have the opportunity to inspect and copy relevant and material records, papers, and other documents not in the party's possession, unless other state or federal law would prohibit this. The bill allows the presiding officer to (1) order a party to produce these documents and (2) issue a nonmonetary order against a party who fails to comply within 30 days.

The nonmonetary order must be deemed just and appropriate by the officer and may do the following:

1. find that the matters that are the subject of the order are established as set forth in the other party's claim,

2. prohibit the noncomplying party from introducing designated matters into evidence,

3. limit that party's participation as to issues or facts relating to the order, and

4. draw an adverse inference against that party.

Deadline for Decision After Hearing; Reporting to Judiciary Committee (§ 5(i))

The bill sets a specific deadline for the resolution of discriminatory practice complaints (including those filed by CHRO) that have proceeded to the public hearing stage of the process.

By law, if a CHRO investigator finds reasonable cause to believe that discrimination occurred and fails to eliminate it, the investigator must certify the complaint and results of the investigation to the CHRO executive director and attorney general. The complaint then proceeds to the administrative hearing process. CHRO's legal counsel can also send complaints directly to the hearing phase after early legal intervention (an optional step for complaints not resolved after mandatory mediation).

The bill requires the officer presiding over the hearing to issue a final decision no later than 18 months after the complaint was certified or sent directly to a hearing after early legal intervention, as applicable. As under current law, these hearings must also comply with specified deadlines for contested cases under the Uniform Administrative Procedure Act (UAPA). The UAPA requires agencies to render a final decision within 90 days after the close of evidence or due date for filing briefs, whichever is later.

The bill allows either party or CHRO (whether or not it is a party) to apply to Hartford Superior Court to request an order requiring the presiding officer to comply with (1) the bill's 18-month deadline and (2) the UAPA's 90-day deadline. After a hearing, the court must issue an appropriate order. These provisions on court enforcement of the 90-day deadline already apply under the UAPA.

The bill requires the chief human rights referee to report annually to the Judiciary Committee, with the first report due by January 1, 2018. She must report, for the prior fiscal year, on the number of:

Under existing law, the chief human rights referee must appoint human rights referees to preside over CHRO hearings. She must also appoint another referee or a volunteer attorney to conduct settlement negotiations.

The bill creates a process for judge trial referees (JTRs) to preside over CHRO hearings under certain circumstances. It requires the chief court administrator to designate JTRs who must be available to act as presiding officers at any CHRO hearing or proceeding on:

1. a discriminatory practice complaint;

2. a complaint brought by CHRO against a contractor or subcontractor for (a) noncompliance with antidiscrimination laws or required contract provisions (e.g., affirmative action requirements) or (b) fraud related to qualifying as a minority business enterprise in relation to certain state, municipal, and quasi-public agency contracts; or

3. determining remedies following a default order against a respondent.

Under the bill, any such JTR has the same powers and duties as a human rights referee appointed under law and must be compensated at the rate set by existing law, from CHRO funds as available.

The bill also allows such JTRs to hear whistleblower complaints for alleged retaliation against employees of state or quasi-public agencies, large state contractors, or appointing authorities.

The bill allows the CHRO executive director, within available appropriations, to appoint such a JTR to preside at a settlement conference or to hear and issue a final decision on a complaint when there are more than 100 pending (1) discriminatory practice complaints at the public hearing stage or (2) whistleblower retaliation complaints. If she chooses to appoint a JTR for a discriminatory practice complaint, she must do so no later than 15 days after (1) a CHRO investigator certified the complaint or (2) CHRO legal counsel sent the complaint directly to a public hearing after early legal intervention.

Under the bill, if the executive director does not appoint a JTR to conduct a settlement conference, she may appoint a volunteer attorney (as authorized by existing law) to conduct settlement negotiations. If the executive director does neither, the chief human rights referee must appoint a (1) human rights referee to hear the complaint or (2) human rights referee or volunteer attorney to conduct a settlement conference.

By law, a complainant or respondent can ask CHRO to reopen a case, and CHRO can also reopen a case on its own motion.

Current law prohibits a party from requesting a reopening if the complainant (1) has been granted a release from CHRO jurisdiction or (2) has not been granted a release but has filed a court case. The bill instead prohibits CHRO from reopening a case upon such a request if either party or CHRO has filed a court appeal of the presiding officer's final order or if the complainant has filed an appeal of certain other determinations. Existing law already prohibits CHRO from reopening a case on its own motion when such an appeal is pending.

Under current law, a party requesting a reopening must apply within two years of CHRO's final decision in the matter. The bill shortens this to one year if the request is to reopen the matter under one of the four grounds allowed by existing law (e.g., material mistake of law or fact).

The bill also adds a new ground upon which a case may be reopened: a party's fraud, misrepresentation, or other misconduct. It allows the other party to request a reopening for such a reason at any time, as long as the case has not been appealed as set forth above.

By law, a judge or senior judge who reaches age 70 becomes a state referee for the remainder of his or her term and can be appointed as a state referee for subsequent terms. The chief justice can also appoint qualified members of the bar who are residents and electors of Connecticut as state referees. The chief justice can designate a state referee as a judge trial referee. A judge trial referee can hear criminal and civil cases and juvenile matters on referral from the Superior Court (CGS §§ 51-50l, 52-434).