GLAA urges increase in OHR budget 04/13/00
Govt. Operations FY 2001 Committee Budget Report Excerpt: OHR
Office of Human Rights
(includes Commission on Human Rights)
I. Committee Recommendation
The Committee recommends a $1,522,000 budget for the Office of Human Rights in FY 2001, including $1,301,000 in local funding and $221,000 in federal funding.
The Committee's proposal reflects an increase of $315,000 from the Mayor's proposed budget of $1,207,000. First, the Committee recommends a one-time allocation of $200,000 to enable the Office to reduce its persistently large case backlog, which presently stands at almost 700 cases. Second, the Committee increases the Office's federal grants budget from $106,000 to $221,000 to reflect the expected allocation of $115,000 from a cooperative agreement that the Office signed with the U.S. Department of Housing and Urban Development in October 1999.
The Committee stresses that the $200,000 one-time allocation should not become part of the Office's baseline budget for FY 2002. Rather, policymakers should evaluate the Office's progress at that point to see if additional appropriations are helping to reduce the backlog.
(all $ in 000s)
|FY 99 Actual||FY 00 Budget||FY 01 Mayor||FY 00 Committee|
II. Agency Mission and Structure
The Office of Human Rights ("Office") and the Commission on Human Rights ("Commission") jointly enforce the D.C. Human Rights Act of 1977. Both the Office and the Commission are funded through the account in the District's budget entitled "Office of Human Rights," with the Commission included as a responsibility center in the Office's budget.
The Human Rights Act bars discrimination in employment, housing, public accommodations, and educational institutions based on 15 characteristics: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibility, disability, political affiliation, matriculation (not a protected class for educational institutions), source of income (not a protected class for employment), and place of residence or business (not a protected class for employment or educational institutions). An individual can file a complaint with the Office if the alleged act of discrimination took place in the District, even if he or she is not a District resident. Until October 1, 1999, the Office of Human Rights was part of the Department of Local Business Development and Human Rights. As part of the Fiscal Year 2000 Budget Support Act of 1999, the Council adopted the Committee's recommendation to divide Local Business Development and Human Rights into two separate agencies, based on the view that the two functions were largely unrelated and to some extent incompatible. Local business development involves business promotion, whereas human rights often involves enforcement against business. As numerous observers noted, the human rights function had been neglected in this organizational structure, because the main emphasis was on local business development.
In February 2000, Mayor Williams named Charles Holman as Acting Director of the separately established Office of Human Rights. Mr. Holman is an attorney who has worked in the Civil Rights Division of the U.S. Department of Justice, for the U.S. Equal Employment Opportunity Commission, and for the U.S. Attorney's Office in Detroit, Michigan. The Committee looks forward to scheduling a confirmation hearing for Mr. Holman, following the Mayor's official transmission of Mr. Holman's nomination on April 12, 2000.
The Human Rights Act, as amended, requires the Office to refer cases for mediation for a 45-day period. If mediation does not result in a voluntary settlement, the Office then investigates the case. By law, the Office has 120 days to determine whether it has jurisdiction and if there is probable cause to believe that an act of discrimination occurred. If the Office finds probable cause, it must attempt once more to settle the case during a 60-day conciliation period. Except in employment discrimination cases involving the District government, the Office certifies the case to the Commission for a hearing if there is no conciliation agreement following the determination of probable cause. The Commission serves as the administrative equivalent to a jury hearing the case, following the determination (probable cause) that there is sufficient evidence to bring the case to trial. In cases involving District government employment, a hearing examiner reviews the case and makes a recommendation to the Director. The Director issues a decision that can then be appealed to the City Administrator.
The Commission is a 15-member volunteer panel whose members are appointed by the Mayor with the advice and consent of the Council. The Commission appoints three-member tribunals to hear cases, but can also designate a hearing examiner to hear the case and recommend a decision to the three-member tribunal. After examining all of the evidence, the Commission issues a decision and order. If the Commission determines that an unlawful discriminatory act has occurred, it can order a number of remedies, including hiring, reinstating, or promoting an employee; extending full accommodations and privileges to all persons; and imposing compensatory damages and attorney's fees, intended to make the plaintiff whole. The Commission may also impose civil penalties on egregious or repeat violators. The Commission's decision may be appealed to the District of Columbia Court of Appeals.
The Office and the Commission have several other powers and responsibilities, including the following:
the Office is empowered to undertake its own investigations and public hearings on any racial, religious, and ethnic group tensions, prejudice, intolerance, bigotry, and disorder, as well as investigations of discrimination against any person or group of people protected under the D.C. Human Rights Law.
the Office reviews complaints of unfair treatment under the Family and Medical Leave Act of 1990 and the Parental Leave Act of 1994. If the Office finds probable cause to believe that a discriminatory act occurred, it certifies the case to the Commission for a hearing, decision, and order.
The Office has a worksharing agreement with the U.S. Equal Employment Opportunity Commission (EEOC). Under this agreement, the Office is reimbursed for resolving discrimination cases covered under the Civil Rights Act of 1964 (which covers employment discrimination based on race, color, religion, sex, or national origin), the Americans with Disability Act, and the Age Discrimination in Employment Act.
During October 1999, the Office received approval for a second cooperative agreement with a federal agency, the U.S. Department of Housing and Urban Development (HUD). Following the enactment of legislation in 1998 (D.C. Law 12-242, the "Human Rights Amendment Act of 1998," effective April 20, 1999) that brought the fair housing sections of the D.C. Human Rights Act into conformity with federal requirements, the District received HUD's approval to investigate alleged violations of the federal fair housing law and receive federal reimbursement for doing so. The legislation expanded fair-housing protections for families with children and people with disabilities, and broadened the scope of the District's fair housing provisions more generally to include access to appraisal, brokerage, and multiple-listing services. In their first three years in the program, human rights agencies are called "capacity-building" agencies." Each capacity-building agency is allocated a grant of $115,000 during FY 2000.
The Office has been organized into four units Intake, Mediation, Investigations, and Education and Research although the newly appointed Director may wish to reassess the current structure. The Office presently has 13 FTE positions, with two equal employment opportunity specialist positions vacant.
The other three FTEs funded by the Office's budget are allocated to the Commission, which employs two hearing examiners and one secretary. The second hearing examiner was hired during FY 99, marking the first time in years that the Commission had more than one hearing examiner.
III. Performance Data
Acting Office of Human Rights Director Charles Holman, along with Jacquelyn Flowers, who was responsible for human rights during FY 99 as Director of the Department of Human Rights and Local Business Development, testified on the Office's FY 99 performance during the Committee's performance review in February 2000. Nevertheless, the Office was unable to submit a performance report for FY 99, because it had stopped keeping caseload data when the statistician retired during 1999. Mr. Holman provided additional data about the Office's performance during budget hearings held in March, and has assigned his new Assistant Director to resolve problems with the case reporting system, including the Office's failure to publish monthly caseload reports. This is a critical priority in ensuring that cases are promptly and properly investigated and resolved.
Budget Execution. Mr. Holman stated during his February testimony that the Office spent only $792,000 of its $1,044,000 budget in FY 99, leaving $252,000 unspent. Mr. Holman cited a number of reasons for the unused funds, including:
First, the Office had $75,000 in unspent funds for personal services, resulting from a decision to keep vacant positions unfilled so that the new Director could assess the organization's needs and recruit staff to help him execute his plans. Mr. Holman noted that three of the Office's 16 FTEs remained vacant as of February 2000.
Second, the Office received $17,000 less ($89,000 rather than $106,000) in grant funding from the U.S. Equal Employment Opportunity Commission than it had projected, and did not spend $59,000 in grant funds because a contract solicitation for letters of determination was issued in FY 99 but was not awarded until FY 2000. The grant funds will carry over to FY 2000.
Third, there was a surplus of $47,000 in telephone costs. Mr. Holman stated that the Office sought to reprogram the surplus funds but that the request was denied by the Office of the Chief Financial Officer.
Finally, there was a $49,000 surplus in contractual services that was slated to address a backlog of cases in mediation, but the solicitation was canceled due to a failure to advertise the bid properly and the funds were not expended.
Mr. Holman noted that the Office had signed an agreement with the U.S. Department of Housing and Urban Development in which the Office will receive more than $100,000 in annual reimbursement for enforcing the federal fair housing law. He stated that he plans to hire a fair housing specialist to investigate discrimination complaints, as well as to provide outreach and training to landlords, realtors, tenants, and others about the requirements of the law.
Investigations and Case Backlog. Mr. Holman stated the Office's pending case inventory was 698 cases. The Office therefore failed to reach the original performance target, set before the Williams administration took office, of reducing the backlog by approximately 20 percent, to 580 cases. As shown by the following statistics, the case backlog has remained stubbornly impervious to reduction for years:
650 cases pending, end of FY 96;
686 cases pending, end of FY 97;
711 cases pending, end of FY 98;
698 cases pending, end of FY 99.
The persistently large case backlog renders almost meaningless the promise of broad protections and swift justice embodied in the D.C. Human Rights Act. Although the law requires the Office to complete its investigation within 120 days, the median time from the docketing of its case to its closure was 560 days during FY 98. The Office was unable to provide similar data for FY 99. Mr. Holman advised the Committee that the Office had contracted with the Training Center, a locally owned equal opportunity firm, to help reduce the backlog of cases dating back to 1994 by writing letters of determination in at least 65 cases. In addition, two vacant equal employment opportunity specialist positions will be filled.
Intake and Mediation. Mr. Holman reported that through the use of a revised pre-complaint questionnaire, the average time to docket a complaint was reduced from three hours to two hours, falling short of the one-and-a-half hour goal originally set in the FY 99 performance plan but a significant improvement nonetheless. The mediation unit settled 80 cases during FY 99, which also fell short of the target of 90 set for acceptable" performance as well as the threshold of 110 case closures for superior" performance. Mr. Holman reported that the mediation unit had significantly increased its case closure rate to 53 in the first quarter of FY 2000, more than half the number of cases closed during FY 99. There are 130 cases pending in mediation, a reduction from 206 one year ago. Mr. Holman also advised the Committee that seven lawyers from Metro's Office of General Counsel would start as volunteer mediators beginning in March 2000.
Commission on Human Rights. The Commission presented data showing significant progress in reducing its case backlog. During the February 1999 performance review hearings, the Commission offered data showing that it had closed 12 cases during FY 98 and the first four months of FY 99. One year later, after hiring a second hearing examiner using funds allocated by the Committee, the Commission had doubled its case closure rate, with 25 case closures during FY 99 and the first four months of FY 2000. As a result of this higher productivity level, only 14 cases remained on the Commission's docket as of February 2000, compared with 25 cases pending one year earlier.
Despite the considerable progress, the Commission's case docket shows how far both the Office and the Commission have to go in order to meet the goals of the D.C. Human Rights Act for prompt resolution of cases. The Commission's docket still includes one case filed with the Office and referred to the Commission in 1988 (in that case, the Commission has issued a decision and the parties now have a chance to appeal), and one case filed with the Office in 1990 and referred to the Commission in 1991 (the Commission also issued a decision in that case, but the respondent requested reconsideration). Cases certified to the Commission in 1998 or 1999 were often four or five years old because the Office took so long to complete its investigation.
The Commission's list of case closures also contains one disturbing piece of information. Of the 25 cases closed during FY 99 and the first four months of FY 2000, four were closed because the Commission could not locate the complainant or respondent, reflecting the adage that justice delayed is justice denied.
In addition, the terms of five Commission members expired on December 31, 1999. If new nominations are not made soon, the Commission will have fewer tribunals to hear cases and may lose some of the momentum it now has.
Future Initiatives and Goals. During the budget hearings held in March, Mr. Holman spoke about his activities during his first several weeks on the job and some of his plans for the following year. He noted that three equal employment opportunity specialists had been hired during the prior year and that he expected to recruit two additional equal opportunity specialists to fill vacancies. With so many new staff, Mr. Holman cited training as a priority and outlined his plan to seek training for the new hires through state and federal civil rights agencies at nominal or no cost. Mr. Holman also stated that the new Assistant Director, a former Assistant U.S. Attorney, would oversee training as one of her primary responsibilities.
Mr. Holman advised the Committee of his plans to fill one of the two equal employment opportunity specialists with a bilingual individual. Presently, OHR lacks bilingual staff. Mr. Holman also stated his intent to "build a more diverse office that not only provides multilingual assistance, but one that reaches out to better serve other underserved segments of the District's population, such as the gay and lesbian community."
District Government Compliance with the Human Rights Act. During the February 2000 performance hearings, Rick Rosendall of the Gay and Lesbian Activists' Alliance (GLAA) outlined the need for the Office and the District government as a whole to respect and enforce the D.C. Human Rights Act. Mr. Rosendall cited three separate occasions within the preceding six months in which GLAA had to inform District agencies that they had failed to include in their non-discrimination policies all of the classes protected in the D.C. Human Rights Act. The three cases involved proposed health maintenance organization regulations issued by the Department of Insurance and Securities Regulation; welfare-to-work rules issued by the Department of Human Services; and proposed substance abuse program regulations prepared by the Department of Health. Mr. Rosendall also advised the Committee that the D.C. Public Schools' non-discrimination policy still includes only federally protected classes even though GLAA has complained about the omission of locally protected groups for years.
GLAA has asked the Mayor to issue an executive order mandating that all agency non-discrimination policies include the complete list of classes protected under the D.C. Human Rights Act. The Committee Chairperson endorses this recommendation and urged the Mayor in an April 5, 2000, letter, to issue such an executive order. The District government needs to respect both the letter and the spirit of its own law.
IV. Budget Discussion and Analysis
The Mayor requested a budget of $1,207,000 and 18 FTEs for the human rights agencies in FY 2001, reflecting a decrease of $14,000 from the FY 2000 budget of $1,221,000 at the same time that FTEs would increase from 16 to 18.
Perhaps the most important change in the Mayor's proposed budget is a reduction in federal grant funding from $221,000 in FY 2000 to $106,000 in FY 2001, reflecting the removal of the HUD grant with only the estimated $106,000 EEOC grant remaining. The Committee is not sure why the $115,000 was removed from the budget, because the agreement with HUD is in place. President Clinton's proposed FY 2001 budget maintains the funding level for "capacity-building" agencies, such as the D.C. Office of Human Rights, that are in the first three-year period of qualifying for federal fair-housing reimbursement, at $115,000. Therefore, the Committee restores the $115,000 in HUD grant funding and projects a federal grant budget of $221,000. The HUD grant will allow the Office to hire a full-time housing specialist and to set aside funds for outreach, training, and information systems upgrades consistent with HUD's requirements.
The Mayor's proposed local funds budget for the Office incorporates an increase of $101,000, from $1,000,000 in FY 2000, to $1,101,000 in FY 2001. The Mayor would allocate $100,000 to permit the hiring of two additional FTEs in the Director's office. His proposed budget also includes $42,000 to fund on an annual basis the 6 percent non-union pay increase that took effect on April 1, 2000, as well as $13,000 for employee step increases. Those increases would be offset by reductions in the non-personal services budget of $44,000 for telephone costs and $10,000 for rental costs, as projected by the Office of Property Management.
The Committee believes that massive case backlogs at the Office of Human Rights and the Commission on Human Rights cannot be allowed to persist. Year after year, the backlog remains in the range of 650 to 700 cases, translating into an average investigation of approximately two years in violation of D.C. law requiring a determination of probable cause within 120 days. If present trends continue, a complainant with probable cause is unlikely to receive a decision for four to five years as the case proceeds before the Office and then the Commission. Many plaintiffs go directly to D.C. Superior Court because the Office cannot resolve their cases on a timely basis, and many parties to a case cannot be located by the time the process is completed. These patterns cannot continue.
With a newly appointed human rights director with 20 years of experience in the field, the Committee believes this is a propitious time to make a full-fledged attack on the human rights case backlog and to upgrade all aspects of human rights administration and enforcement: education and outreach, intake, mediation, and investigations. Therefore, the Committee endorses the $101,000 funding increase proposed by the Mayor, and also proposes an infusion of $200,000 to support a backlog reduction initiative. As Craig Howell, secretary of the Gay and Lesbian Activists' Alliance stated in his March 20, 2000, budget testimony, "What we need is the development of a comprehensive, multi-year plan to attack this backlog through additional investigators, EEO specialists, and additional support staff. It can't be done in one year; but if we never develop a long-range plan, it will never happen at all."
The Director could use the funding, at his discretion, to pay for mediation support, additional investigators or conciliators, training, or case tracking systems. The Committee also urges the Director to look for additional sources of pro bono assistance and to explore the possibility that federal agencies such as the U.S. Department of Justice or the U.S. Equal Employment Opportunity Commission would loan staff to the District.
The Committee also urges the Director of the Office to undertake, in conjunction with the Office of Personnel, a review of classification and compensation within the Office. According to data presented at the performance review hearing, eight out of 12 staff on board during January 2000 had annual salaries of less than $40,000. Pay grades may need to be raised to recruit skilled staff. The Committee's funding increase would support such an effort.
The experience of the EEOC suggests that a broad-based backlog reduction program can work and could serve as a model for the D.C. Office of Human Rights. Between FY 95 and FY 99, the EEOC reduced its private-sector employment discrimination caseload from 111,345 to 40,234, a reduction of 64 percent. This reduction in EEOC's backlog is the result of a comprehensive enforcement program in which the EEOC used funding increases to launch a voluntary mediation program; increase education and outreach to small business; identify cases that lack merit early in the process; and coordinate the work of its investigators and litigators to settle cases when possible and prosecute them efficiently and effectively when a settlement is not possible.
As a result of this backlog reduction initiative proposed for the District, the Committee hopes to see at least a 200-case reduction in the backlog, to less than 500 cases, by the end of FY 2001. In setting this target, the Committee notes that the Office and the Commission have essentially been in a steady state for years, receiving and closing approximately 300 cases per year. First, the Committee believes that the Office could close 100 more cases per year simply by using existing resources more effectively. There was a significant sum of unexpended funds ($250,000) last year, and improvements in training, recruitment of staff, and supervision, could lead to significantly higher productivity rates. The infusion of $301,000 in new funds the $101,000 proposed by the Mayor and the $200,000 proposed by the Committee should help raise productivity by at least another one-third, or 100 cases.
In sum, the Committee proposes a $315,000 increase to the human rights budget proposed by the Mayor for FY 2001, for a total budget of $1,522,000. The Committee increases the local funds budget by $200,000, from $1,101,000 to $1,301,000 for a backlog reduction initiative. The Committee also increases the federal funds budget from $106,000 to $221,000 to account for the grant agreement signed by the District with HUD. The Committee stresses, however, that the $200,000 enhancement should not be included as part of the Office's FY 2002 budget. The Office will likely need a multi-year infusion of funds to eliminate its backlog, but the Committee believes it would be important for policymakers to evaluate the Office's performance before committing to a multi-year allocation and determining the amount of that allocation in future years.
Even with the significant funding increase proposed for the Office in FY 2001, the District's funding level would remain well within the range of benchmark agencies, such as the Baltimore Community Relations Commission, the Boston Civil Rights Department ($1.9 million), the Denver Human Rights and Community Relations Commission ($1.5 million), and the Montgomery County Human Relations Commission ($1.5 million). Even in cities such as Baltimore that spend less on human rights than the District does, there is usually a state-level agency (such as the Maryland Commission on Human Relations) that also receives and investigates discrimination complaints. At the same time, many of these agencies operate other initiatives not available in the District, such as community and intergroup relations programs, victims' assistance, and tester programs in which individuals who differ only on race, gender, or other protected class record the results of their search for employment or housing.