GLAA testimony: Corporation Counsel has conflict of interest
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DC Human Rights Law

GLAA on Human Rights

GLAA testimony: Corporation Counsel
has conflict of interest

GAY AND LESBIAN ACTIVISTS ALLIANCE OF WASHINGTON, DC
P.O. Box 75265
Washington, D.C. 20013

Testimony for Oversight Hearings
on the Office of the Corporation Counsel

Committee on the Judiciary
D.C. Council

June 14, 2001

Chairman Patterson, Members of the Committee, and Fellow Citizens:

My name is Bob Summersgill. I am President of the Gay & Lesbian Activists Alliance of Washington (GLAA), the nation's oldest continuously active gay and lesbian rights organization.

Over the past several years, we have seen the Corporation Counsel make decision after decision to weaken the Human Rights Act. We believe that this is due to the Corporation Counsel's dual and conflicting role in interpreting the Human Rights Act. They must simultaneously enforce the law and defend the District against claims of discrimination under the same law.

The Office of the Corporation Counsel (OCC) uses every legal means to aggressively defend its client, the District Government, against charges of violating the Human Rights Act. This was painfully clear in the Tyra Hunter case where then Corporation Counsel Judge Ferren found some of the arguments forwarded by his office in the pre-trial brief legally invalid and - at GLAA's urging - he issued two praecipes to retract the most obnoxious claims.

Unfortunately OCC enforces the Human Rights Act with a biased eye towards current and future defenses. In this light, the OCC interprets the Human Rights Act in the weakest and narrowest manner, giving undue latitude towards defendants.

Two recent examples have come to our attention. First, on June 7, 2000, we asked Corporation Counsel Robert Rigsby to drop the specious argument that citizens may not sue the city under the Human Rights Act without first exhausting all administrative remedies. This argument was made and dismissed in the Tyra Hunter case, as well as in Jefferson v. DC, et al. and Freddy Ramirez et al. v. District of Columbia among others. The Corporation Counsel lost the argument in all of these cases.

Despite being told by judge after judge that their interpretation is wrong, they continue to make the argument and defended it in a letter to GLAA dated March 6, 2001 - 9 months after our initial request.

In our response, we pointed out that they are confusing the words "complaint" and "action." "Complaint" in the Human Rights Act refers to claims filed with the Office of Human Rights and "action" refers to lawsuits filed in court. The Corporation Counsel rejects our point, despite the supporting case law.

The OCC has not yet responded to our detailed response of May 4, 2001 and we are beginning to suspect that they never will, other than their verbal rejection of our argument.

The only reason to make the claim is to delay judgment for at least two years in the Office of Human Rights backlog so that only the victims with the most endurance and wealth can succeed.

The OCC has indicated that they will only cease making this argument if the law is changed. We encourage the Council to take this action as the OCC will otherwise continue to weaken the Human Rights Act.

We agree with the ACLU that the courts should always be available to everyone, including DC employees. The courts currently agree that DC employees must exhaust administrative remedies prior to suing the District for discrimination. Any clarification in the Human Rights Act must include DC employees in order to guarantee their rights as well as anyone privately employed in the District.

The second example of the Corporation Counsel's conflict of interest in enforcing the Human Rights Act is the advice given to the Department of Fire and Emergency Medical Services on the grooming policy. The OCC has attempted to weaken the Human Rights Act by telling Chief Few that the grooming policy is not in violation of the "personal appearance" clause of the Human Rights Act because of its basis in safety.

GLAA completely agrees that safety is a valid and important reason to limit protections based on "personal appearance." However, the Department of Fire and Emergency Medical Services' policy is not based on objective safety tests, but rather on the appearance of safety. GLAA has previously detailed how the policy could be amended to comply with the Human Rights Act and the US Constitution by basing the policy on objective safety concerns. So far our suggestions have been completely ignored. The arrogance of the Corporation Counsel, the Fire Department and the Mayor's office are resulting in embarrassment for all of them and a costly lawsuit for the city which will be followed by more as administrative remedies are exhausted. Further, real safety issues in the Fire Department are being ignored in favor of the appearance of safety.

We were further disappointed to see the Office of the Corporation Counsel overstep its legal authority and usurp the responsibilities of the Office of Human Rights last May by approving an incomplete statement of non-discrimination in the "Notice of Proposed Rulemaking" from the Child and Family Services Agency, Department of Human Services, on "Licensing of Youth Shelters, Runaway Shelters, Emergency Care Facilities, and Youth Group Homes," printed in the May 11 issue of the DC Register (pages 4188-4258).

Section 6203 (page 4192) is a "Statement of Residents' Rights and Responsibilities," designed to be posted prominently within each youth residential facility. The statement was clearly well intentioned, but it failed to simply follow the law and enumerate all of the categories of the Human Rights Act.

Procedurally, the language should have been approved by the Office of Human Rights, as detailed in the Mayor's Executive Order 2000-131 from August 21, 2000. Paragraph number 3 states:

"The Director of the D.C. Office of Human Rights, or the designee thereof, is authorized and directed to implement this Order and to monitor the compliance of executive departments and agencies with its directives."

However, the OHR did not learn about this notice until GLAA brought it to their attention. OHR Director Charles Holman has since arranged for a correction by Deputy Mayor Carolyn Graham's Office.

The Office of the Corporation Council is not unaware of the Executive Order. They initially rejected the language drafted by Charles Holman and then - again after GLAA's intervention - admitted that they were wrong and that the original language was legally and procedurally correct.

GLAA reluctantly finds that the Corporation Counsel has a conflict of interest which cannot be internally resolved that has prevented them from appropriately enforcing the law, as well as giving the appearance of incompetence in interpreting the law.

Only by severing the function of defense counsel from prosecutor can the District hope to have a vigorously enforced and strengthened Human Rights Law. The Office of Human Rights cannot, with its limited budget and functions take over the prosecutorial role. A prosecutor - or Attorney General as proposed by Councilmember David Catania - who is not beholden to the Federal government or operating under a conflict of interest, is needed to protect our rights and the integrity of our laws.

Thank you.

I am available to answer any questions that you may have.


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