This article is part three of an in-depth look at the complaint process of the Davenport Civil Rights Commission through the case of Ingleore Nabb vs. David Botsko. (See River Cities' Reader issues 503 and 505.)

Residents need to closely examine the complaint process of the Davenport Civil Rights Commission (DCRC) and determine whether this commission, under its current charter and broad-based quasi-judicial authority, is appropriate for our community.

While there is public good to be served via an entity that advocates our civil rights, the potential for harm is even greater with the DCRC because of its structure and inherent biases.

Nabb versus Botsko involves a 63-year-old German-born female American citizen's suit against her ex-employer, David Botsko, for discrimination and sexual harassment. The original complaint included discrimination based on her national origin, age, and gender, as well as sexual harassment and constructive discharge (when an employee quits because of intolerable working conditions due to discrimination and/or harassment). The complaint was reduced to sexual harassment and constructive discharge only.

The DCRC's chair, Alan Egly, responded to the last two Reader articles in writing with a copy of the complaint process as it is defined in its 2003 annual report, which can be viewed in its entirety at (http://www.cityofdavenportiowa.com/civilrights). Egly's letter explained: "It is inappropriate for the commission to respond to any issues related to a case that is on appeal and will not do so."

The DCRC is supposed to be neutral in its role as facilitator in processing discrimination complaints. However, its neutrality is compromised by the fact that the DCRC simultaneously acts as investigator, prosecutor, and adjudicator.

Not only does the DCRC control whether a complaint is actionable, it also eventually determines any financial judgments, in which it participates to reimburse itself for expenses etc. It can be argued that it is in the DCRC's self-interest to find a party guilty and levy fines against it.

The burden on an individual to defend against a complaint that arises from the DCRC is greater than with any other municipal commission. With most commissions, when a complaint is filed, the commission hears arguments from both sides, and then renders its decision. If either party disagrees with a commission's decision, it can appeal it to the Iowa District Court, at which time attorneys are typically hired.

The DCRC complaint process demands that an attorney be hired immediately because, as a quasi-judicial body, it has subpoena powers that allow witnesses to be called, depositions to be taken, documents to be seized, etc.

If mediation efforts are unsuccessful, a public hearing takes place in front of an administrative law judge (ALJ), who listens to arguments from both sides and renders a decision that is considered to be a recommendation only. In other words, it is not binding and the DCRC can accept it, modify it, or reject it entirely. It is at this point that a case actually comes before the commission, which hears the arguments again, then makes its own ruling that is binding unless either party appeals to the Iowa District Court.

In the case of Nabb versus Botsko, ALJ Kevin Visser dismissed the case against Botsko, ruling that Nabb did not have enough evidence to meet the burden of proof required under the law to sustain any discrimination or sexual-harassment charge. Even so, the DCRC overturned Judge Visser's ruling, claiming Nabb did meet the necessary burden of proof to sustain the sexual-harassment complaint.

Should Commissioners Be Fully Informed?

What is the point of the first public hearing? The process so closely resembles a court proceeding, complete with motions, briefs, etc., causing the expense for both the complainant and respondent to be inordinately cumbersome at the outset. In addition, because the judge's decision can be rejected, the case may continue on to another hearing by the commission itself, and possibly on to district court.

The DCRC agreed with all of Visser's findings of fact, but disagreed with his conclusion of law relative to the sexual-harassment complaint. As a result, a formal hearing to present arguments before the commission was held. Commissioners were provided the transcript from the three-day public hearing before ALJ Visser, along with exhibits containing relevant documents. Commissioners are asked, but not required, to read this documentation prior to the body's own hearing, after which it either accepts, modifies, or rejects the ALJ's ruling in favor of its own.

Absurdly, both parties (Nabb and Botsko) were given approximately 10 minutes to argue their cases before the commission. This is hardly sufficient considering the public hearing before the ALJ took three days.

No commissioner attended the entire three-day public hearing, a fact that boggles the mind in terms of protocol. If these seven individuals are charged with overturning an experienced judge's decision after three days of testimony, the minimum expectation should be that they are mandated to attend the public hearing. Reading the transcripts is not sufficient. Important information and nuances are not included in transcripts that impact testimony. For example, ex-employee Veronica Salsido was reduced to tears during her testimony as she recalled her unpleasant experience working with Nabb. The transcript only conveys words, neglecting the emotion behind them. Such emotion, body language, and myriad other nuances speak to the truth of a matter every bit, sometimes more, than mere words.

According to the DCRC's 2003 annual report, only two public hearings were held that year as the result of a complaint, so mandating that commissioners attend such hearings, especially because the ALJ's ruling could potentially be modified or rejected, should be a fundamental requirement.

Had commissioners bothered to attend the Nabb versus Botsko public hearing, they would have witnessed firsthand their director, Judith Morrell, sitting at Nabb's table, participating as a prosecutor rather than the neutral observer she is supposed to be.

In fact, after the commission's own hearing was concluded, several closed sessions were held for commissioners to deliberate in private before making their decision. Director Morrell attended these closed sessions, but is restricted by law from giving her opinion relative to any case before the body. So why is she present at all during these closed sessions? This is akin to the prosecutor sitting in with the jury during deliberations.

The DCRC ruled in favor of Nabb's complaint of sexual harassment. In its final order, the DCRC awarded a financial judgment against Botsko in the amount of $58,016: $20,000 in lost wages and $5,000 in emotional distress for Nabb; $30,081 in attorney's fees for Nabb; and $2,935 in expenses for the DCRC. Add to this Botsko's own attorney's fees - close to $48,000 (so far) - and the cost is more than $100,000 to defend against a civil-rights suit that boils down to one party's word (Nabb's) against the other's (Botsko's).

It should be noted that one of the commissioners, attorney Carrie Coyle, represented an ex-employee of Botsko who was found guilty of embezzling funds while employed by him. Arguably, she should have recused herself from voting but did not.

Botsko is appealing the DCRC's final order to the Iowa District Court.

Commission Accused of Misconduct

It is important to note here that after the DCRC's final order was issued, Commissioner LaSonee Mascio formally accused Director Morrell of misconduct and of bias against Botsko, and accused DCRC commissioners of "unethical, immoral, and illegal acts." In a sworn affidavit, Mascio alleges that Morrell withheld two testimonies from the commission because they did not favor Nabb. According to the affidavit, during an August 20 closed session, Mascio asked why the commission "was making a decision on this case without having received Lisa Garcia['s] and Tracy Brown's transcripts." Morrell made copies of the two ex-employees' testimonies and distributed them to commissioners later in the meeting. Mascio alleges that the reason Morrell gave for not including the two testimonies was that they were not supportive of Nabb. Recorded minutes of the closed session state, "Telephonic depositions of Lisa Garcia and Tracy Brown were distributed. Director Morrell stated that in her opinion the depositions were not supportive of Nabb's complaint."

Mascio was removed from the DCRC by Mayor Charlie Brooke not long after these events transpired.

Botsko filed a motion for dismissal based on bias, and to prove his case has motioned for the tapes of the closed session to be released. The DCRC has refused to release the tapes and is fighting Botsko's motion for their release at the expense of Davenport taxpayers, claiming such release would set a dangerous precedent.

Exactly what dangerous precedent is unclear, especially when all of these proceedings should be completely open considering the magnitude of the potential consequences. But more importantly, if no such bias exists on Morrell's part, then why not voluntarily release the tapes and clear the matter up for the good of all? This good-will gesture would have the added benefit of avoiding any setting of precedent because of its voluntary nature.

Commission Knows Best?

What has to be examined at this point is twofold: First, what qualifies the DCRC's seven commissioners to overturn an experienced ALJ's ruling in the first place? What background, individually and collectively, do these folks have in civil-rights law? What remotely qualifies them to navigate the complexities of a case that demands strict adherence to the law because the consequences to the party accused have the potential for profound damage to reputations, livelihoods, personal and professional relationships, and assets?

To illustrate the disconnect, after each party presented arguments to the commission, one commissioner asked what "constructive discharge" meant. This concept is fundamental to the case before the commission, and after supposedly reading all the documentation and listening to arguments from both parties, there is still a glaring lack of understanding of the basics by at least one commissioner.

Second, the essence of the Nabb versus Botsko case: It illustrates the potential danger of abuse of power perfectly. After three years of investigation, motions, attempted mediation, etc., the public hearing for this case, which lasted for three days, took place in April 2003. Visser ruled in favor of Botsko, claiming that Nabb did not prove her case for discrimination based on her age, national origin, or gender, nor was there sufficient evidence to support her claim of sexual harassment or constructive discharge.

The DCRC agreed with all Judge Visser's finding of facts (that no sufficient evidence exists), dropping all discrimination charges yet maintaining charges for sexual harassment and constructive discharge. The case is now being appealed at district court.

The law states that alleged behavior must be severe and pervasive to constitute sexual harassment, and must effect a term or condition of employment.

Nabb worked for Botsko from January 1997 through November 1999, claiming sexual harassment occurred for the duration of her employment. However, there is only one witness qualified to corroborate this, and she did not. Joanne Garrels, the office manager, has worked for Botsko for nine years, and was there throughout Nabb's employment term. She testified that no such conduct took place. In addition, four other past employees who were co-workers of Nabb corroborated what Garrels said, each testifying that no sexual harassment took place.

Only two witnesses supported Nabb's testimony: an ex-employee, Julianne Kout, who was fired after working for Botsko for only five weeks in 1997, and Botsko's ex-fiancée, who worked in his office for four weeks, also in 1997, and whose testimony was determined to be not credible by Judge Visser. Kout's testimony is questionable because she was terminated after such a short employment period back in 1997. Botsko's ex-fiancée recanted her testimony during a recent interview with the Reader, claiming that her testimony was based on what Nabb told her, not on anything she witnessed firsthand. Her term of employment also falls outside the statutory timeframe.

Meanwhile, at least eight of the 18 witnesses (past employees and patients including myself) who submitted written testimony on behalf of Botsko regarding their limited but firsthand knowledge of Nabb's and Botsko's relationship made specific reference to Nabb's preoccupation with Botsko's personal life. Yet in her determination for probable cause, Director Morrell declared all of these witnesses not credible, giving no reason for this finding.

During the three-day public hearing, Nabb testified to one incident of a sex-based hand gesture (commonly referred to as the Dr. Ruth Westheimer gesture), after which the gesture was never used again. Nabb also testified to three or four incidents of patients engaging in sex-related conversation, yet only one such conversation could be confirmed, after which Botsko had the patient apologize. Once again, there is no corroboration. No testimony from any patients was forthcoming. Finally, Nabb claimed that she notified Botsko on numerous occasions that she found conversations about a local strip club offensive. There is no corroboration by any witnesses, ex-employees or patients, that Nabb complained to Botsko about discussions about strip clubs, or any other sex-related conversations on Botsko's part. On the contrary, witness Mark Wolfe, a medical supplier, testified that Nabb initiated a conversation about the strip club out of curiosity.

Remaining testimony showed that no conduct, including any sex-related conversation on Botsko's part, was ever directed at Nabb personally. Nearly all testimony showed that Nabb periodically overheard alleged sex-related conversation between Botsko and two other individuals: conversations that took place almost exclusively in the privacy of his office.

Past employee Walker, who also worked in Botsko's office during the last six months of Nabb's employment, testified that no such conduct ever took place. Walker further testified that it was Nabb who instigated sex-related conversations that focused on Botsko's personal life.

In other words, Nabb cites offensive language she overheard on occasion, and one substantiated incident of the Dr. Ruth gesture (which Botsko used in lieu of the word "sex," according to his testimony) as cause for her claim of sexual harassment. In the DCRC's final order, Director Morrell claims that these incidents occurred "on a daily basis." However, there is no evidence or any witness corroboration that the hand gesture or sex-related conversation took place with any kind of frequency, let alone on a daily basis. Thus the final order distorts testimony and twists facts to justify its ruling that imposes a staggering $58,016 penalty.

No other witness could be produced, either employee or patient, to corroborate any of the allegations made by Nabb beyond one or two isolated incidences described above. While some testimony claimed that Botsko was difficult to work for, similar testimony was given about working with Nabb. No testimony, including Nabb's, supports sexual harassment as defined by law.

ALJ Visser recognized this and recommended the case be dismissed. The looming question is: On what grounds has the DCRC sustained Nabb's sexual-harassment complaint and caused a fine of $58,016?

In his recommended ruling, Judge Visser states: "The high threshold of harm requires Mrs. Nabb to show a work environment 'permeated with discriminatory intimidation, ridicule, and insult.' ... Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of employment. Boorish, immature, offensive, or even vulgar conduct does not meet the threshold unless the conduct is so continual, severe, abusive, or extreme as to interfere with a reasonable person's work performance."

The DCRC's final order countered this with, "After reviewing the testimony and exhibits entered at the public hearing, the recommended decision, and considering the briefs and exceptions filed along with oral arguments, the Davenport Civil Rights Commission accepts and adopts the Administrative Law Judges findings of fact, but rejects his conclusions of law in part. ... The commission, however, rejects the Administrative Law Judge's conclusions of law with regard to Ms. Nabb's sexual-harassment claim and her claim of constructive discharge and finds that Ms. Nabb does establish a claim for sexual harassment and constructive discharge."

Prosecutor, Judge and Jury ... or Not?

It is deeply disturbing that the rules of law are so loosely applied in a civil-rights complaint proceeding. How can the public possibly trust a process that allows for one entity to act as prosecutor, judge, and jury? Who is the DCRC accountable to for its abuses? Even if Botsko wins his appeal in district court, what recourse does he have for being victimized by a process that has such inherent bias and destructive consequences? How much damage has already been done to Botsko, both personally and financially? And what about Nabb? Is she responsible for attorney's fees if she loses? Did she bargain for this outcome? What happens to low-income individuals if they can't afford legal representation? Does the DCRC underwrite these complaints? How can a party to a suit possibly find fairness in a process that allows those who determine probable cause to eventually determine their guilt or innocence?

The DCRC's potential for abuse of power as a quasi-judicial body greatly outweighs any other consideration. Its entire structure demands a legislative overhaul by city leaders. Further investigation into this case is obviously merited, but at a minimum some sort of remedy for Botsko's ordeal also needs pursuing.

(Note: Nabb's attorney, Marleta Greve, wrongly levied Botsko's bank account for $58,000 before his appeal has been decided. He had to take her to court, at his own expense no less, to retrieve his money. This kind of abuse goes on and on ... .)

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