On March 30, 2005, the Davenport Civil Rights Commission (DCRC) filed a motion "to strike the March 28, 2005, order setting hearing on petitioner's petition for judicial review." The petitioner is Dr. David Botsko; the petition for judicial review is Botsko's appeal of the DCRC's Final Determination against him in Nabb v. Botsko, in which the DCRC overturned Administrative Law Judge Kevin Visser's ruling that Botsko was innocent of all charges against him, including age, gender, and national-origin discrimination and sexual harassment. The order setting hearing provides Botsko and Nabb the opportunity to present their arguments before a judge, up-front and personal. It's called due process and is a vital part of Botsko's civil rights.

The DCRC's motion to "strike" was an outrageous attempt to censor Botsko by canceling the hearing and removing the opportunity to meet with the judge for oral arguments. What is wrong with this picture? What kind of an organization, whose banner flies under the colors of civil rights, would deliberately try to trample an individual's right to due process by moving to deny said rights in an action against one party in favor of another? This is a breach of the public trust, and of all that the DCRC is supposed to stand for.

Thankfully, the DCRC's motion to strike was flatly denied, and Botsko will be allowed to present his appeal on Monday, June 20, when the public can only hope that truth will prevail and justice will be done by overturning the DCRC's final determination, for which Botsko has been fined an astronomical $58,000 in damages!

Recall that the DCRC is a quasi-judicial authority with subpoena and police powers that closely resemble those of America's district courts. One exception lies in its probable-cause determination. The commission may subpoena documents, interrogate witnesses, and confiscate property before probable cause is even determined.

The DCRC takes the complaint; investigates for probable cause; makes the formal determination of probable cause; schedules a public hearing with an administrative law judge; convenes to accept, modify, or reject the judge's decision, making a "final determination" of its own; and applies fines as it sees fit with the authority to levy the guilty party's bank account.

Unique to most municipal commissions' authority, the DCRC can overturn any recommended decision by an administrative law judge, infinitely more qualified to determine guilt or innocence when presented with evidence.

Finally, the DCRC can impose monetary remedy against parties found guilty of discrimination or sexual harassment, and it participates financially in those punishments.

Note that the DCRC is composed of seven individuals appointed by the mayor, some of whom have no formal higher education, and most, if not all, of whom have zero training in civil-rights law. Yet these seven individuals have the authority to trump an administrative law judge and impose severe financial penalties at their whim.

Nabb v. Botsko is perhaps one of the worst miscarriages of justice by a city commission in the history of Davenport. Consider the following facts:

• Nabb worked for Botsko for four years (March 1997 to December 1999) before filing a complaint against him in March 2000.

• Administrative Law Judge Kevin Visser, from Cedar Rapids and with 20 years' experience in civil-rights law, presided over the three-day public hearing for Nabb v. Botsko in April 2003. Judge Visser heard the testimony of 17 witnesses during this time.

• Of the 17 witnesses who testified for both sides, 15 could not corroborate any of Nabb's accusations. Five directly refuted her claims, most of who worked for Botsko during the four years of Nabb's employment or were patients.

• Nabb's entire case boiled down to two corroborating testimonies: Nabb, and an ex-employee who worked for Botsko for five weeks in 1997 and was terminated. In addition, this ex-employee's testimony conflicted with her original deposition, in which she stated she could not corroborate Nabb's claims. (See River Cities' Reader issues 503, November 17-23, 2004; 506, December 8-14, 2004; and 509, January 12-18, 2005.)

•After considering all the evidence, Judge Visser ruled in Botsko's favor, calling for the dismissal of all charges because Botsko did not break the law as it pertains to discrimination or harassment.

•Six of the seven commissioners did not attend any part of the three-day public hearing. The seventh commissioner attended sporadically.

• There is no requirement for training in civil-rights law for appointed commissioners.

• During the three-day hearing, DCRC Director Judith Morrell sat at complainant Nabb's table, and was observed advising her and her attorney throughout the proceedings. The DCRC, including its director, is supposed to be neutral as a necessary part of the process.

• Upon receiving Judge Visser's decision in favor of Botsko, the DCRC convened to hear 10-minute arguments from both sides before deliberation, resulting in its overturning Judge Visser's ruling and finding Botsko guilty of sexual harassment.

• No documentation has been forthcoming showing when the commissioners actually received all the documents - investigative reports, depositions/interrogatories, public-hearing testimonies, petitions and briefs, etc. - necessary to adequately review this consequential case, or justify overturning a judge's findings.

• The DCRC will participate financially in the $58,000 judgment if Botsko loses his appeal in district court.

On a final note, there is a clear distinction between office banter, regardless of how distasteful, and sexual harassment. The distortion of facts to make a case of for discrimination or sexual harassment in Nabb v. Botsko failed in the eyes of a trained judge but succeeded by DCRC's standards. Reading the respective rulings by each party brings into sharp relief those very differences. The hazard here is the DCRC's potential for abuse of its powers meant to protect us, evidenced by the frivolous actions against Botsko and the fact that by ordinance he has no recourse against the DCRC, whether he wins or loses.

The financial burden to a respondent is excessive because the process requires legal representation out of the gate precisely because the DCRC is a quasi-judicial authority. Add any fine imposed if the respondent loses, and the repercussions are staggering.

The civil-rights complaint process has an inherent bias that cannot be avoided. The DCRC acts as prosecutor, judge, and jury, and there is nothing unbiased about it. It defines the complaint process, investigates it, determines probable cause, eventually rules on it, and imposes fines as it sees fit.

Mayor Brooke was apprised of the inequities in this particular case, as was Alderman Bob McGivern, both of whom did nothing. In fact, one commissioner filed an affidavit with the court attesting to misconduct on the part of Morrell relative to the Nabb v. Botsko case, and the result was Mayor Brooke's prompt removal of this individual from the commission.

Hopefully, when a new council is elected this fall, it can revisit the ordinance that governs the DCRC and bring about the reform it so desperately needs.

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