It's hard to imagine a six-year old legal battle with a city commission that is out to get you, especially with no substantial evidence to support its claims. Such is the case with Davenport dentist Dr. David Botsko and the Davenport Civil Rights Commission (DCRC) in Naab v. Botsko.
To briefly summarize: After approximately four years as a dental assistant beginning in March 1997, and upon quitting in December 1999, 63-year-old German-born Inglenore Naab filed a complaint against Botsko, her 42-year-old employer, for age, gender, and national-origin discrimination, sexual harassment, and constructive discharge.
The DCRC initiated an investigation, with nearly 30 witnesses via questionnaires and phone calls and the submission of written testimony, to determine probable cause. Curiously, the majority of 18 written submissions on behalf of Botsko were deemed "not credible."
Three years later, in April 2003, Naab v. Botsko was heard by Administrative Law Judge Kevin Visser. After three days of testimony by 17 witnesses, Judge Visser ruled that the case be dismissed on all counts because Naab had not met the burden of proof required by law that states alleged conduct must be severe or pervasive enough so as to effect a condition of employment.
Judge Visser determined from the evidence that Botsko did not violate the law, that office bantering and politics were not sufficient cause to support Naab's claims.
Astonishingly, after holding its own hearing on July 9, 2005, and giving each party a mere 10 minutes to present its case, the DCRC rejected Judge Visser's ruling. It issued its own final order declaring Botsko guilty on the claim of sexual harassment and constructive discharge and fining him nearly $60,000!
Botsko appealed the DCRC's decision in district court, but because the DCRC's final order was legally flawed, it was remanded by Judge Bobbi Alpers back to the DCRC for clarification. (The DCRC agreed with all Judge Visser's "findings of fact," but disagreed with his "conclusions of law." Suffice it to say that legally, if there is agreement with facts, there can't be disagreement with conclusions.) Since it can be argued that the district court's remand order was its final ruling, Botsko went on to appeal his case to the Iowa Supreme Court, where it is currently awaiting action.
It appears, however, that DCRC Director Judith Morrell and Naab attorney Marlita Greve are unfamiliar with the rules governing the appeal process. Judge Alpers informed them that the district court no longer had jurisdiction of the case, rendering the remand order moot for the time being. Ignoring Judge Alpers, the DCRC made revisions and on December 20, 2005, submitted its revised final order to the district court anyway, contradicting most of its original assertions and making new "findings of fact" and "conclusions of law" that are almost entirely unsubstantiated because there is little if any corroboration. In other words, the DCRC is basing its verdict of guilty almost solely on the testimony of the complainant Naab!
This revised final order was then submitted to the Iowa Supreme Court as a supplement to the DCRC's motion to deny Botsko's appeal as if it were a sanctioned document. Both submissions are outside the proper protocol for the appeals process and show the DCRC as the vindictive, overzealous antagonist that it is with regard to this case.
A closer look at the evidence, as well as behind the scenes relative to the commission itself, is necessary to understand just how heinous the DCRC's actions are. Recall that Judge Visser, with 20 years experience in civil-rights law, heard three days of testimony by 15 witnesses, not including Naab and Botsko. Of the 15 witnesses, only one corroborated Naab's testimony: Julianne Kout, who worked for Botsko for only five weeks in March and April 1997, after which she was fired. This time frame also happens to correspond with the first five weeks of Naab's full-time employment, which also began in mid-March 1997, according to the record. How can Kout possibly corroborate four years of what Naab claims was "pervasive" sexual harassment when they only worked together for five weeks at the beginning of Naab's full-time employment?
In addition, Kout's testimony was impeached on three separate occasions on the stand, yet the DCRC still uses it as evidence in its revised final order!
Now for the kicker: Of the remaining 14 witnesses, seven of whom were also past and present employees of Botsko, none corroborated any of the claims made in Naab's testimony; in fact, most directly refuted them! Five patients also testified that they did not witness any of the claims made against Botsko.
Based upon the overwhelming evidence supporting Botsko's innocence, Judge Visser rightly ruled in his favor by dismissing all the charges. In fact, no rational finder of facts would conclude that substantial evidence from disinterested parties exists to support any of the allegations in this case. Yet this is precisely what the DCRC has done.
Its new "findings of fact" are exaggerated, and in some cases flatly untrue if you go by the testimonies in evidence. The case borders on fraudulent and demands an immediate investigation of the DCRC. Meanwhile, Botsko has spent nearly $60,000 and counting defending himself against these unsubstantiated charges, and faces another $60,000 in fines should the courts somehow rule against him - not to mention the mental, emotional, and professional anguish this has caused him over the past six years.
And what are the consequences to the DCRC, a quasi-judicial body with police and subpoena powers to seize property and private documents and to levy fines, but which operates with zero oversight or accountability? According to the ordinances governing the DCRC, none, because citizens have no recourse against the commission in cases where there is wrongdoing on its part!
Consider that the commission is composed of seven citizens, who volunteer for staggered two-year terms (so commissioners are coming and going all the time). Ideally, commissioners should represent a cross-section of the community. Unfortunately, however, most do not possess in-depth knowledge of civil-rights law and must rely on staff for much of their information. It is important to note that, by law, staff is not permitted to influence commissioners on the outcomes of cases. The commission is charged with operating as a neutral party in adjudicating claims of civil-rights violations. It is supposed to examine evidence independent of staff and arrive at its own conclusions based upon the evidence.
This is inherently contradictory because it is the commission that determines probable cause based upon the evidence given to it by the director and staff. These seven untrained individuals then collectively have the right to overturn an administrative law judge with 20 years' experience in civil-rights law if they don't like his or her ruling. In other words, they operate as prosecutor, judge, and jury! It only follows that if the DCRC finds probable cause relative to a complaint, and then represents the party bringing the complaint (the complainant), it will naturally overturn any decision that doesn't rule in its favor. It is a ludicrous process that stomps on the very rights it claims to protect.
At the time of the original hearing for Botsko v. Naab in April 2003, the Commission that overturned Judge Visser's ruling included several commissioners who deserve scrutiny. One commissioner recused herself because she lived in the same neighborhood as Dr. Botsko. Another, arguably, should have recused herself because, as an attorney, she represented an ex-employee of Botsko's several years prior and lost the case. A third commissioner filed an affidavit relative to this case accusing DCRC Director Judith Morrell of misconduct for unduly influencing the commissioners in favor of Naab, and withholding evidence until the 11th hour that favored Botsko. (The evidence consisted of telephonic dispositions from two of Botsko's ex-employees refuting Naab's claims and supporting Botsko's innocence.) This allegation was not upheld because the remaining commissioners signed affidavits denying it.
Of great importance is the fact that only one of the commissioners attended any part of the three-day hearing in April 2003. According to the court reporter, he was in and out, but also left during the portion of the proceedings when Kout's testimony was impeached. Otherwise, not one of the commissioners observed any of the hearing, or the demeanor or conduct of those testifying. Nor did any of them witness Director Morrell (an attorney herself) sitting with Naab and attorney Greve, presumably consulting and supporting Naab throughout the three days. So much for neutrality.
This means that the commissioners had to rely on the documentation to determine guilt or innocence. The evidence amounted to a pile almost two feet tall of critical documentation. My investigation alone took more than six months of research, including hundreds of questions and verification of details. Yet the commission, having supposedly read all the evidence and after holding a hearing on July 9, 2003, with 10-minute presentations by both Naab and Botsko, managed to determine its final order of guilty in two closed sessions - the first on July 9, 2003, lasting for 29 minutes, the second on August 13, 2003, lasting an hour and 20 minutes. A grand total of an hour and 49 minutes!
While each commissioner was in possession of the documentation well in advance of the July hearing, it was clear from several of the questions asked during the presentations that there were some who did not understand even the most fundamental aspects of the proceedings. For example, one commissioner asked what "constructive discharge" meant. Another commissioner was reported to have trouble reading the materials, requiring assistance.
Furthermore, since the commissioners are prohibited by law from discussing cases outside the presence of the entire commission, all the discussion relative to this case, with the exhaustive evidence to consider, was done in a matter of less than two hours!
It isn't much of a leap to wonder how much of the evidence the commissioners actually read, let alone were satisfactorily informed on, to justify making a decision that would negatively impact another's reputation, financial well-being, and future income. How can two hours possibly suffice for even the most rudimentary due diligence in convicting anyone, let alone Botsko, whose evidence supports an innocent verdict? Consequently, it follows that an investigation is warranted to determine how much of a role DCRC Director Morrell and staff played in directing the verdict.
Regardless of how culpable Morrell and the DCRC staff are or aren't, the seven commissioners (five of whom are new and were not present for the proceedings and original final order in 2003) are the ones who will be held accountable at the end of the day for this egregious conduct. Morrell makes sure of this by stating within the revised final order recently, albeit inappropriately, submitted to the district court on December 20, 2005: "After reviewing all the evidence, commissioners met to deliberate at a special session on November 30, 2005. The commission reported its findings of fact and conclusions of law concerning the severe or pervasive element of Ms. Naab's sexual-harassment claim on November 30, 2005, and directed its attorney, Judith J. Morrell, to draft the findings and conclusions ... ."
Regardless of the outcome, whether Botsko wins or not, the intolerable circumstances that prevailed in this case will be pursued until the truth is exposed and corrections are made via ordinances to provide that this travesty never happens again. But for the grace of God, it could be you or me next time.
To briefly summarize: After approximately four years as a dental assistant beginning in March 1997, and upon quitting in December 1999, 63-year-old German-born Inglenore Naab filed a complaint against Botsko, her 42-year-old employer, for age, gender, and national-origin discrimination, sexual harassment, and constructive discharge.
The DCRC initiated an investigation, with nearly 30 witnesses via questionnaires and phone calls and the submission of written testimony, to determine probable cause. Curiously, the majority of 18 written submissions on behalf of Botsko were deemed "not credible."
Three years later, in April 2003, Naab v. Botsko was heard by Administrative Law Judge Kevin Visser. After three days of testimony by 17 witnesses, Judge Visser ruled that the case be dismissed on all counts because Naab had not met the burden of proof required by law that states alleged conduct must be severe or pervasive enough so as to effect a condition of employment.
Judge Visser determined from the evidence that Botsko did not violate the law, that office bantering and politics were not sufficient cause to support Naab's claims.
Astonishingly, after holding its own hearing on July 9, 2005, and giving each party a mere 10 minutes to present its case, the DCRC rejected Judge Visser's ruling. It issued its own final order declaring Botsko guilty on the claim of sexual harassment and constructive discharge and fining him nearly $60,000!
Botsko appealed the DCRC's decision in district court, but because the DCRC's final order was legally flawed, it was remanded by Judge Bobbi Alpers back to the DCRC for clarification. (The DCRC agreed with all Judge Visser's "findings of fact," but disagreed with his "conclusions of law." Suffice it to say that legally, if there is agreement with facts, there can't be disagreement with conclusions.) Since it can be argued that the district court's remand order was its final ruling, Botsko went on to appeal his case to the Iowa Supreme Court, where it is currently awaiting action.
It appears, however, that DCRC Director Judith Morrell and Naab attorney Marlita Greve are unfamiliar with the rules governing the appeal process. Judge Alpers informed them that the district court no longer had jurisdiction of the case, rendering the remand order moot for the time being. Ignoring Judge Alpers, the DCRC made revisions and on December 20, 2005, submitted its revised final order to the district court anyway, contradicting most of its original assertions and making new "findings of fact" and "conclusions of law" that are almost entirely unsubstantiated because there is little if any corroboration. In other words, the DCRC is basing its verdict of guilty almost solely on the testimony of the complainant Naab!
This revised final order was then submitted to the Iowa Supreme Court as a supplement to the DCRC's motion to deny Botsko's appeal as if it were a sanctioned document. Both submissions are outside the proper protocol for the appeals process and show the DCRC as the vindictive, overzealous antagonist that it is with regard to this case.
A closer look at the evidence, as well as behind the scenes relative to the commission itself, is necessary to understand just how heinous the DCRC's actions are. Recall that Judge Visser, with 20 years experience in civil-rights law, heard three days of testimony by 15 witnesses, not including Naab and Botsko. Of the 15 witnesses, only one corroborated Naab's testimony: Julianne Kout, who worked for Botsko for only five weeks in March and April 1997, after which she was fired. This time frame also happens to correspond with the first five weeks of Naab's full-time employment, which also began in mid-March 1997, according to the record. How can Kout possibly corroborate four years of what Naab claims was "pervasive" sexual harassment when they only worked together for five weeks at the beginning of Naab's full-time employment?
In addition, Kout's testimony was impeached on three separate occasions on the stand, yet the DCRC still uses it as evidence in its revised final order!
Now for the kicker: Of the remaining 14 witnesses, seven of whom were also past and present employees of Botsko, none corroborated any of the claims made in Naab's testimony; in fact, most directly refuted them! Five patients also testified that they did not witness any of the claims made against Botsko.
Based upon the overwhelming evidence supporting Botsko's innocence, Judge Visser rightly ruled in his favor by dismissing all the charges. In fact, no rational finder of facts would conclude that substantial evidence from disinterested parties exists to support any of the allegations in this case. Yet this is precisely what the DCRC has done.
Its new "findings of fact" are exaggerated, and in some cases flatly untrue if you go by the testimonies in evidence. The case borders on fraudulent and demands an immediate investigation of the DCRC. Meanwhile, Botsko has spent nearly $60,000 and counting defending himself against these unsubstantiated charges, and faces another $60,000 in fines should the courts somehow rule against him - not to mention the mental, emotional, and professional anguish this has caused him over the past six years.
And what are the consequences to the DCRC, a quasi-judicial body with police and subpoena powers to seize property and private documents and to levy fines, but which operates with zero oversight or accountability? According to the ordinances governing the DCRC, none, because citizens have no recourse against the commission in cases where there is wrongdoing on its part!
Consider that the commission is composed of seven citizens, who volunteer for staggered two-year terms (so commissioners are coming and going all the time). Ideally, commissioners should represent a cross-section of the community. Unfortunately, however, most do not possess in-depth knowledge of civil-rights law and must rely on staff for much of their information. It is important to note that, by law, staff is not permitted to influence commissioners on the outcomes of cases. The commission is charged with operating as a neutral party in adjudicating claims of civil-rights violations. It is supposed to examine evidence independent of staff and arrive at its own conclusions based upon the evidence.
This is inherently contradictory because it is the commission that determines probable cause based upon the evidence given to it by the director and staff. These seven untrained individuals then collectively have the right to overturn an administrative law judge with 20 years' experience in civil-rights law if they don't like his or her ruling. In other words, they operate as prosecutor, judge, and jury! It only follows that if the DCRC finds probable cause relative to a complaint, and then represents the party bringing the complaint (the complainant), it will naturally overturn any decision that doesn't rule in its favor. It is a ludicrous process that stomps on the very rights it claims to protect.
At the time of the original hearing for Botsko v. Naab in April 2003, the Commission that overturned Judge Visser's ruling included several commissioners who deserve scrutiny. One commissioner recused herself because she lived in the same neighborhood as Dr. Botsko. Another, arguably, should have recused herself because, as an attorney, she represented an ex-employee of Botsko's several years prior and lost the case. A third commissioner filed an affidavit relative to this case accusing DCRC Director Judith Morrell of misconduct for unduly influencing the commissioners in favor of Naab, and withholding evidence until the 11th hour that favored Botsko. (The evidence consisted of telephonic dispositions from two of Botsko's ex-employees refuting Naab's claims and supporting Botsko's innocence.) This allegation was not upheld because the remaining commissioners signed affidavits denying it.
Of great importance is the fact that only one of the commissioners attended any part of the three-day hearing in April 2003. According to the court reporter, he was in and out, but also left during the portion of the proceedings when Kout's testimony was impeached. Otherwise, not one of the commissioners observed any of the hearing, or the demeanor or conduct of those testifying. Nor did any of them witness Director Morrell (an attorney herself) sitting with Naab and attorney Greve, presumably consulting and supporting Naab throughout the three days. So much for neutrality.
This means that the commissioners had to rely on the documentation to determine guilt or innocence. The evidence amounted to a pile almost two feet tall of critical documentation. My investigation alone took more than six months of research, including hundreds of questions and verification of details. Yet the commission, having supposedly read all the evidence and after holding a hearing on July 9, 2003, with 10-minute presentations by both Naab and Botsko, managed to determine its final order of guilty in two closed sessions - the first on July 9, 2003, lasting for 29 minutes, the second on August 13, 2003, lasting an hour and 20 minutes. A grand total of an hour and 49 minutes!
While each commissioner was in possession of the documentation well in advance of the July hearing, it was clear from several of the questions asked during the presentations that there were some who did not understand even the most fundamental aspects of the proceedings. For example, one commissioner asked what "constructive discharge" meant. Another commissioner was reported to have trouble reading the materials, requiring assistance.
Furthermore, since the commissioners are prohibited by law from discussing cases outside the presence of the entire commission, all the discussion relative to this case, with the exhaustive evidence to consider, was done in a matter of less than two hours!
It isn't much of a leap to wonder how much of the evidence the commissioners actually read, let alone were satisfactorily informed on, to justify making a decision that would negatively impact another's reputation, financial well-being, and future income. How can two hours possibly suffice for even the most rudimentary due diligence in convicting anyone, let alone Botsko, whose evidence supports an innocent verdict? Consequently, it follows that an investigation is warranted to determine how much of a role DCRC Director Morrell and staff played in directing the verdict.
Regardless of how culpable Morrell and the DCRC staff are or aren't, the seven commissioners (five of whom are new and were not present for the proceedings and original final order in 2003) are the ones who will be held accountable at the end of the day for this egregious conduct. Morrell makes sure of this by stating within the revised final order recently, albeit inappropriately, submitted to the district court on December 20, 2005: "After reviewing all the evidence, commissioners met to deliberate at a special session on November 30, 2005. The commission reported its findings of fact and conclusions of law concerning the severe or pervasive element of Ms. Naab's sexual-harassment claim on November 30, 2005, and directed its attorney, Judith J. Morrell, to draft the findings and conclusions ... ."
Regardless of the outcome, whether Botsko wins or not, the intolerable circumstances that prevailed in this case will be pursued until the truth is exposed and corrections are made via ordinances to provide that this travesty never happens again. But for the grace of God, it could be you or me next time.
