07
Dec
2004
This article is part two of an in-depth look at the Davenport Civil Rights Commission's (DCRC) complaint process through the case of Inglore Nabb versus David Botsko. (See "Prosecutor, Judge, & Jury," Issue 503, November 17-23, 2004.)
Because the DCRC is a quasi-judicial body, it has powers and authority over areas of our lives that much of the public might not be aware of. The complaint process closely resembles that of our courts, with explicit jurisdiction, subpoena powers, and enforcement authority, including binding monetary judgments against parties the commission finds in violation of the laws that govern discrimination and harassment in the workplace of protected groups (race, religion, gender, national origin, age, mental or physical handicap, etc.).
As a quasi-judicial authority, the DCRC wields a very big stick in this particular area of law. For those guilty of discrimination and/or harassment, this stick can hopefully bring appropriate consequences. However, for the innocent, it can be a frightening, highly destructive abuse of power. Consider the case of Nabb versus Botsko.
Inglore Nabb is a German-born female American citizen who worked as a dental assistant for David Botsko from early March 1997 through early December 1999. On December 7, 1999, Nabb (then 63 years old) quit her job with Botsko (then 46). The following March, she filed a suit with the DCRC claiming discrimination based on her national origin, age, and gender, including sexual harassment, that she claims resulted in her being constructively discharged. The charges allege unwelcome sex-related conversations and a sex-based hand gesture in the office, as well as several disparaging remarks about Nabb's German heritage.
(Author's note: Repeated attempts failed to reach DCRC Director Judith Morrell for comment on either the DCRC or the Nabb versus Botsko case because it was still in appeal.)
Nabb's complaint initiated a fact-finding investigation by the DCRC that, by rights, should be neutral as to its outcome, and unbiased with regard to the parties involved. Botsko responded to the complaint with an aggressive declaration of innocence, submitting 18 letters from patients and employees both present and past, each giving witness to their own experiences and opinions relative to Botsko's professionalism and the relationship between Nabb and Botsko. In the Determination of Probable Cause, Director Morrell dismissed most of Botsko's 18 witnesses as not credible: "The witnesses provided by Respondent support his position. They suggest that Complainant initiated sexually inappropriate conversations and told off-color jokes and that she was the harasser instead of Respondent. Respondent's statements and the statements of the witnesses he provides, however, are not credible." (Author's note: I was one of the 18 witnesses who submitted a letter on behalf of Botsko in 2000.)
As part of its investigation, the DCRC sent out 30 questionnaires to witnesses for both Nabb and Botsko. Follow-up interviews were also conducted. Michelle Neel, the DCRC's investigator, wrote in her brief summary of these 30 witnesses that 29 of the 30 interviewed supported Botsko.
As part of the DCRC's complaint process, mediation is offered throughout to try to resolve a complaint. By definition, mediation attempts to reconcile through a third party, who listens to each side of a complaint. Problem-solving techniques, such as identifying common ground, noting potential misunderstandings, providing clarification, etc., are often used to arrive at a resolution satisfactory to both parties. However, according to Botsko and his attorney Mike McCarthy, mediation in this case was basically a settlement hearing to determine a dollar amount that would satisfy the complaint. Mediation was unsuccessful in Nabb versus Botsko.
Once probable cause has been determined in a case, it is the commission's responsibility to schedule a public hearing. An administrative law judge hears the case in the same way that a judge hears a case in court. Briefs are submitted, along with evidence, interrogatories, etc., requiring representation by an attorney for both parties. The administrative law judge then renders a "recommended ruling," which determines the guilt or innocence of the respondent. In the case of Nabb versus Botsko, Judge Kevin Visser, after two days of testimony, ruled against Nabb in favor of Botsko, determining that he did not break the law as it pertains to discrimination or harassment and recommending dismissal of all charges.
However, because Judge Visser's ruling is a recommendation, it is not binding. Either party can appeal the recommended ruling to the commission for review. The commission has the authority to "adopt, modify, or reject the judge's recommended decision or remand the case to the administrative law judge for further evidence," according to the Davenport Civil Rights 2003 Annual Report. In the case of Nabb versus Botsko, the commission overturned Judge Visser's decision and issued a final order against Botsko in favor of Nabb, demanding a monetary settlement of $58,141.
Once the Commission issues its final order in a case, either party can appeal that decision in district court. Botsko appealed his final order and is awaiting a decision from this court.
Because the consequences deriving from a civil rights complaint can be so severe, and because the DCRC has such far-reaching authority, the process and the DCRC require close scrutiny. Nabb versus Botsko offers a unique opportunity to explore the civil-rights complaint process to determine if while protecting one party's rights, this process violates the other party's rights. To that end, this in-depth look will continue for the next several weeks. The Nabb versus Botsko case provides insight into the civil-rights complaint process that is relevant, need-to-know information that deserves consideration.
The following questions provide a framework for investigation into the civil-rights case of Nabb versus Botsko:
• Why is the DCRC complaint process different from other city commissions?
• What are the qualifications for the DCRC staff, including investigators, director, etc.?
• What training does the DCRC staff receive in civil-rights law?
• What are the criteria for appointing DCRC commissioners?
• What training do commissioners receive in civil-rights law?
• Is there a protocol for civil-rights complaint investigations to follow?
• What documentation is required for a civil-rights complaint investigation to determine probable cause or not?
• What protects parties (complainants, respondents, witnesses, etc.) from undue intrusiveness during investigations?
• By what criteria are witnesses selected in a civil-rights investigation?
• What are the criteria for determining if a witness is credible or not?
• What is the protocol for the director's reports to the commission each month on the progress of individual cases?
• What is the process and criteria for the commission to order a public hearing to be scheduled for a case?
• What happens if the complainant cannot afford an attorney?
• What is the purpose of mediation in a civil-rights case?
• What is the goal of the commission, as a neutral party, during civil-rights mediation?
• How can a commission be neutral when it conducts the initial investigation that determines probable cause, resulting in prosecution of an alleged civil-rights violation?
• In the event of a public hearing, where an administrative law judge rules, what is the purpose for allowing the DCRC to override this ruling?
• If the commission can eventually override the rulings that result from public hearings, why are commissioners not required to attend these public hearings?
• If the commission's director is neutral, why did Director Morrell sit at the complainant's table during the public hearing for Nabb versus Botsko?
• Is the requirement for commissioners to read the transcripts from public hearings sufficient for overriding judges' rulings?
• If the director determines probable cause in civil-rights cases, why is the director allowed in the commission's closed sessions to determine whether to override judges' rulings?
• What are the criteria for determining monetary settlements in civil-rights cases?
• If a respondent is found innocent, how is this individual compensated for expenses, harm to reputation and business, etc.?
• Is it proper for the DCRC to benefit financially from a monetary settlement?
• What are the consequences, if any, for filing frivolous complaints?
Because the DCRC is a quasi-judicial body, it has powers and authority over areas of our lives that much of the public might not be aware of. The complaint process closely resembles that of our courts, with explicit jurisdiction, subpoena powers, and enforcement authority, including binding monetary judgments against parties the commission finds in violation of the laws that govern discrimination and harassment in the workplace of protected groups (race, religion, gender, national origin, age, mental or physical handicap, etc.).
As a quasi-judicial authority, the DCRC wields a very big stick in this particular area of law. For those guilty of discrimination and/or harassment, this stick can hopefully bring appropriate consequences. However, for the innocent, it can be a frightening, highly destructive abuse of power. Consider the case of Nabb versus Botsko.
Inglore Nabb is a German-born female American citizen who worked as a dental assistant for David Botsko from early March 1997 through early December 1999. On December 7, 1999, Nabb (then 63 years old) quit her job with Botsko (then 46). The following March, she filed a suit with the DCRC claiming discrimination based on her national origin, age, and gender, including sexual harassment, that she claims resulted in her being constructively discharged. The charges allege unwelcome sex-related conversations and a sex-based hand gesture in the office, as well as several disparaging remarks about Nabb's German heritage.
(Author's note: Repeated attempts failed to reach DCRC Director Judith Morrell for comment on either the DCRC or the Nabb versus Botsko case because it was still in appeal.)
Nabb's complaint initiated a fact-finding investigation by the DCRC that, by rights, should be neutral as to its outcome, and unbiased with regard to the parties involved. Botsko responded to the complaint with an aggressive declaration of innocence, submitting 18 letters from patients and employees both present and past, each giving witness to their own experiences and opinions relative to Botsko's professionalism and the relationship between Nabb and Botsko. In the Determination of Probable Cause, Director Morrell dismissed most of Botsko's 18 witnesses as not credible: "The witnesses provided by Respondent support his position. They suggest that Complainant initiated sexually inappropriate conversations and told off-color jokes and that she was the harasser instead of Respondent. Respondent's statements and the statements of the witnesses he provides, however, are not credible." (Author's note: I was one of the 18 witnesses who submitted a letter on behalf of Botsko in 2000.)
As part of its investigation, the DCRC sent out 30 questionnaires to witnesses for both Nabb and Botsko. Follow-up interviews were also conducted. Michelle Neel, the DCRC's investigator, wrote in her brief summary of these 30 witnesses that 29 of the 30 interviewed supported Botsko.
As part of the DCRC's complaint process, mediation is offered throughout to try to resolve a complaint. By definition, mediation attempts to reconcile through a third party, who listens to each side of a complaint. Problem-solving techniques, such as identifying common ground, noting potential misunderstandings, providing clarification, etc., are often used to arrive at a resolution satisfactory to both parties. However, according to Botsko and his attorney Mike McCarthy, mediation in this case was basically a settlement hearing to determine a dollar amount that would satisfy the complaint. Mediation was unsuccessful in Nabb versus Botsko.
Once probable cause has been determined in a case, it is the commission's responsibility to schedule a public hearing. An administrative law judge hears the case in the same way that a judge hears a case in court. Briefs are submitted, along with evidence, interrogatories, etc., requiring representation by an attorney for both parties. The administrative law judge then renders a "recommended ruling," which determines the guilt or innocence of the respondent. In the case of Nabb versus Botsko, Judge Kevin Visser, after two days of testimony, ruled against Nabb in favor of Botsko, determining that he did not break the law as it pertains to discrimination or harassment and recommending dismissal of all charges.
However, because Judge Visser's ruling is a recommendation, it is not binding. Either party can appeal the recommended ruling to the commission for review. The commission has the authority to "adopt, modify, or reject the judge's recommended decision or remand the case to the administrative law judge for further evidence," according to the Davenport Civil Rights 2003 Annual Report. In the case of Nabb versus Botsko, the commission overturned Judge Visser's decision and issued a final order against Botsko in favor of Nabb, demanding a monetary settlement of $58,141.
Once the Commission issues its final order in a case, either party can appeal that decision in district court. Botsko appealed his final order and is awaiting a decision from this court.
Because the consequences deriving from a civil rights complaint can be so severe, and because the DCRC has such far-reaching authority, the process and the DCRC require close scrutiny. Nabb versus Botsko offers a unique opportunity to explore the civil-rights complaint process to determine if while protecting one party's rights, this process violates the other party's rights. To that end, this in-depth look will continue for the next several weeks. The Nabb versus Botsko case provides insight into the civil-rights complaint process that is relevant, need-to-know information that deserves consideration.
The following questions provide a framework for investigation into the civil-rights case of Nabb versus Botsko:
• Why is the DCRC complaint process different from other city commissions?
• What are the qualifications for the DCRC staff, including investigators, director, etc.?
• What training does the DCRC staff receive in civil-rights law?
• What are the criteria for appointing DCRC commissioners?
• What training do commissioners receive in civil-rights law?
• Is there a protocol for civil-rights complaint investigations to follow?
• What documentation is required for a civil-rights complaint investigation to determine probable cause or not?
• What protects parties (complainants, respondents, witnesses, etc.) from undue intrusiveness during investigations?
• By what criteria are witnesses selected in a civil-rights investigation?
• What are the criteria for determining if a witness is credible or not?
• What is the protocol for the director's reports to the commission each month on the progress of individual cases?
• What is the process and criteria for the commission to order a public hearing to be scheduled for a case?
• What happens if the complainant cannot afford an attorney?
• What is the purpose of mediation in a civil-rights case?
• What is the goal of the commission, as a neutral party, during civil-rights mediation?
• How can a commission be neutral when it conducts the initial investigation that determines probable cause, resulting in prosecution of an alleged civil-rights violation?
• In the event of a public hearing, where an administrative law judge rules, what is the purpose for allowing the DCRC to override this ruling?
• If the commission can eventually override the rulings that result from public hearings, why are commissioners not required to attend these public hearings?
• If the commission's director is neutral, why did Director Morrell sit at the complainant's table during the public hearing for Nabb versus Botsko?
• Is the requirement for commissioners to read the transcripts from public hearings sufficient for overriding judges' rulings?
• If the director determines probable cause in civil-rights cases, why is the director allowed in the commission's closed sessions to determine whether to override judges' rulings?
• What are the criteria for determining monetary settlements in civil-rights cases?
• If a respondent is found innocent, how is this individual compensated for expenses, harm to reputation and business, etc.?
• Is it proper for the DCRC to benefit financially from a monetary settlement?
• What are the consequences, if any, for filing frivolous complaints?
