16
Nov
2004
When David Botsko received a letter from the Davenport Civil Rights Commission (DCRC) dated March 16, 2000, notifying him that a former employee was suing him for discrimination and harassment, he could not have predicted that, nearly five years and approximately $40,000 later, he would still be defending his claim of innocence against a system that appears to simultaneously endow the DCRC with the powers and authority of a prosecutor, judge, and jury. Botsko's particular case is fascinating, not only as a civics lesson in municipal procedures, but also as a complex series of events suited for Court TV.
Since a complaint was brought against Botsko in January of 2000, the case has seen the DCRC reject a ruling by an administrative law judge that recommended dismissing the case; a Civil Rights commissioner removed after ex parte discussions with said judge; audio tapes of a DCRC closed session that allegedly show the director's bias against Botsko; and a private attorney for the complainant succeed in illegally seizing over $50,000 from Botsko's bank account prior to any appeal process.
A Lower Burden of Proof
The Davenport Civil Rights Commission was established by ordinance in 1974. The ordinance gives it the authority to enforce its mission statement: "secure for all individuals within our City freedom from discrimination because of race, color, religion, creed, sex, sexual orientation, national origin or ancestry, age, mental or physical disability, marital status, and familial status (in housing only) in the areas of employment, housing, public accommodations, and credit."
The DCRC consists of seven mayor-appointed commissioners who serve two-year terms. The Commission appoints a director, who is required to give monthly reports on his/her activities and the status of complaints filed in the office. The DCRC currently has seven staff members, including the director, an investigative paralegal, a housing analyst, two administrative secretaries, a recording secretary, and a volunteer clerk.
In 1999, the ordinance was amended to grant the Commission subpoena powers in investigation, and to include a fair-housing provision similar to the Fair Housing Act.
As a result, the DCRC is a quasi-judicial body with powers similar to those of police and the court that can significantly impact parties who come under its jurisdiction. It only requires a complaint of alleged harassment and/or discrimination to trigger an investigation that probes areas of our lives we thought protected by our Constitution.
The good news is that if these types of allegations are proved, the DCRC has the necessary authority to bring accountability via consequences to the offender(s). Such enforcement acts as a deterrent relative to such conduct.
The bad news is that the process itself has an inherent bias that can result in substantial abuse of power, impacting lives without the comprehensive and neutral due process that should be mandatory where such enforcement authority exists.
The DCRC is a civil authority versus a criminal authority, so the laws differ relative to how intrusive or limited an investigation can be, as well as the burden of proof. In criminal cases, the standard of review has as its threshold in "reasonable doubt," but in most civil cases, the threshold is a "preponderance of evidence." Relative to civil rights, the standard of review only requires "substantial evidence," which, by definition, means less than a preponderance but more than a scintilla of evidence.
Even so, the law that governs sexual harassment and discrimination for the protected groups is specific enough that proving such allegations is more difficult than not. The law states that a complainant must show that any action of harassment or discrimination against him/her was sufficiently severe or pervasive to alter a term, condition, or privilege of employment.
The Complaint Process
An individual (referred to as the "complainant") making a complaint of sexual harassment and/or discrimination must contact the DCRC and fill out an initial complaint form. Once the form is received by the DCRC, an investigation is initiated. Notifications of the complaint and requests for information (referred to as "interrogatories") are sent to all parties. If the accused does not respond, an automatic judgment will be filed against him or her.
Because judgments (referred to as the "final orders") are usually accompanied by a financial settlement in the form of a monetary award to the complainant for attorney's fees, lost wages, pain and suffering, etc. (a percentage of which can go to the DCRC), the respondent's bank account can be seized to satisfy the settlement. Therefore, a respondent is compelled to respond regardless of the cost of legal representation, which is incurred over and above any financial settlement.
It is for this reason that it is incumbent on the DCRC to perform its investigative duties with complete neutrality, giving appropriate weight to evidence in a fair and truthful manner. The Commission's director, Judith Morrell, is responsible for making sure that all investigations adhere to the highest possible ethical code, especially because the investigative process tends to deal with very personal information and is subject to public record.
Mediation (referred to as "conciliation") is encouraged at all stages of the complaint process for possible resolution. If parties are successful through mediation, the complaint ends there. However, if mediation fails, the investigation continues to determine if there is probable cause.
An investigation must provide evidence or the lack thereof in order to determine probable cause or not in a civil-rights case. The investigative latitude is expansive. Both the complainant and respondent provide names of witnesses to the DCRC. However, an investigation is not limited to just those witnesses, and the DCRC can reach out and interview anyone it deems potentially relevant to a case. Questionnaires are sent to any number of identified and potential witnesses; fact-finding interviews are conducted; and requests for production of documents from witnesses is permissible, as well as on-site inspection and examination of all sorts of documents belonging to the respondent, including proprietary financial records and employee files.
Once the facts and evidence are gathered, the investigator "submits a case summary containing a recommendation for probable cause or no probable cause" to the director, according to the DCRC's "Complaint Resolution Process (March 16, 2000)." If the director makes a finding of probable cause, then a "determination of probable cause" is given to the commissioners for review and/or a public hearing is scheduled.
The investigator and director are the only two authorities that have full access to all the evidence as the investigation unfolds. The question is: What criteria govern the information to be included or discarded for the probable-cause determination? Are there explicit standards, or is it primarily subjective? The director is solely responsible for framing the determination of probable cause that moves a complaint along the process. How can the commissioners adequately review a determination of probable cause when the only information they see is what the director presents in the determination?
Notification of the public hearing is sent to all parties. An administrative law judge presides over the hearing. After hearing the facts and evidence of the case, the judge issues a recommended decision (referred to as a "recommended ruling") as to whether harassment or discrimination occurred.
The DCRC can adopt, modify, or reject the judge's ruling and, upon review by commissioners, can issue its own ruling (referred to as the "final order"). Once a final order is issued, either party can appeal this decision in district court. Keep in mind that in 2003, the DCRC resolved 155 complaints, resulting in monetary awards of more than $316,000. However, only two cases had probable cause that resulted in a public hearing - both of which are in appeal.
The Botsko Case
For purposes of illustration, the case of Ingleore Nabb versus David Botsko deserves scrutiny because the parties participated throughout the gamut of procedure, from complaint to appeal in district court, where the case is currently pending. But this case represents more than just an employee's claim of injury or an employer's claim of innocence. The process goes directly to the heart of the issue of justice in matters of misconduct and unfairness relative to discrimination, a social flaw considered unacceptable in a civilized society to the degree that our governments, both local and national, have mandated a special adjudicating body to govern its eradication.
But is the process designed to effect this mandate, or is its structure potentially destructive to individual rights and reputation?
Naab is an ex-employee of David Botsko who worked for him as a dental assistant from early March 1997 through early December 1999. Naab, a 63-year-old female German-born American citizen, quit on December 7, 1999, filing a complaint of sexual harassment and national-origin, age, and gender discrimination, as well as a claim that she was constructively discharged, against Botsko in March 2000.
A public hearing was held on April 14 and 15, 2003, after which Administrative Law Judge Kevin Visser issued a recommended ruling in favor of Botsko, suggesting dismissal of the case against him for lack of evidence that met the threshold for proving harm as a result of harassment or discrimination. "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," stated Visser's ruling.
Subsequently, the case was reviewed by the commission, and the judge's ruling was rejected in favor of complainant Nabb with a determination that Nabb did establish her claims of harassment, discrimination, and constructive discharge, issuing a final order that included damages in the amount of $58,017.56. Botsko appealed the Commission's final order and is awaiting a decision from the district court.
Nabb versus Botsko involves many unexpected twists and turns. Some examples include :
· A majority of the respondent's witnesses were declared "not credible" in the "Determination of Probable Cause";
· A commissioner publicly accused the DCRC director of withholding two testimonies that favored respondent Botsko and of stated bias against respondent Botsko during closed session;
· Minutes of closed session could feasibly support an allegation of bias by Director Morell;
· A commissioner was removed for misconduct including ex parte communication;
· An appeal judge recused himself from a hearing appeal because of ex parte;
· A witness for the respondent alleged her deposition was falsified by the DCRC and was denied access to the tape of her testimony;
· A witness for the claimant recanted her testimony made during the public hearing;
· A motion was filed to request the release of tapes of closed session, upon which DCRC filed a motion to resist release of tapes; and
· The complainant's attorney levied respondent's bank account, extracting $58,141 before an appeal was decided and final judgment issued.
This is just the surface. What is below the surface reveals a drama of evidence and testimony that reveals the pitfalls of a unique process that might very well provide a civil-rights commission authority that can undermine the very rights it was created to protect. The intent is noble but the implementation, as shown here, can be dangerously intrusive and destructive.
This story will continue in next week's issue.
Full disclosure: David Botsko has been the author's dentist for more than 15 years. McCarthy was asked to submit a letter of testimony on Botsko's behalf in 2000, and hers was one of the many that the DCRC determined to be non-credible.
Since a complaint was brought against Botsko in January of 2000, the case has seen the DCRC reject a ruling by an administrative law judge that recommended dismissing the case; a Civil Rights commissioner removed after ex parte discussions with said judge; audio tapes of a DCRC closed session that allegedly show the director's bias against Botsko; and a private attorney for the complainant succeed in illegally seizing over $50,000 from Botsko's bank account prior to any appeal process.
A Lower Burden of Proof
The Davenport Civil Rights Commission was established by ordinance in 1974. The ordinance gives it the authority to enforce its mission statement: "secure for all individuals within our City freedom from discrimination because of race, color, religion, creed, sex, sexual orientation, national origin or ancestry, age, mental or physical disability, marital status, and familial status (in housing only) in the areas of employment, housing, public accommodations, and credit."
The DCRC consists of seven mayor-appointed commissioners who serve two-year terms. The Commission appoints a director, who is required to give monthly reports on his/her activities and the status of complaints filed in the office. The DCRC currently has seven staff members, including the director, an investigative paralegal, a housing analyst, two administrative secretaries, a recording secretary, and a volunteer clerk.
In 1999, the ordinance was amended to grant the Commission subpoena powers in investigation, and to include a fair-housing provision similar to the Fair Housing Act.
As a result, the DCRC is a quasi-judicial body with powers similar to those of police and the court that can significantly impact parties who come under its jurisdiction. It only requires a complaint of alleged harassment and/or discrimination to trigger an investigation that probes areas of our lives we thought protected by our Constitution.
The good news is that if these types of allegations are proved, the DCRC has the necessary authority to bring accountability via consequences to the offender(s). Such enforcement acts as a deterrent relative to such conduct.
The bad news is that the process itself has an inherent bias that can result in substantial abuse of power, impacting lives without the comprehensive and neutral due process that should be mandatory where such enforcement authority exists.
The DCRC is a civil authority versus a criminal authority, so the laws differ relative to how intrusive or limited an investigation can be, as well as the burden of proof. In criminal cases, the standard of review has as its threshold in "reasonable doubt," but in most civil cases, the threshold is a "preponderance of evidence." Relative to civil rights, the standard of review only requires "substantial evidence," which, by definition, means less than a preponderance but more than a scintilla of evidence.
Even so, the law that governs sexual harassment and discrimination for the protected groups is specific enough that proving such allegations is more difficult than not. The law states that a complainant must show that any action of harassment or discrimination against him/her was sufficiently severe or pervasive to alter a term, condition, or privilege of employment.
The Complaint Process
An individual (referred to as the "complainant") making a complaint of sexual harassment and/or discrimination must contact the DCRC and fill out an initial complaint form. Once the form is received by the DCRC, an investigation is initiated. Notifications of the complaint and requests for information (referred to as "interrogatories") are sent to all parties. If the accused does not respond, an automatic judgment will be filed against him or her.
Because judgments (referred to as the "final orders") are usually accompanied by a financial settlement in the form of a monetary award to the complainant for attorney's fees, lost wages, pain and suffering, etc. (a percentage of which can go to the DCRC), the respondent's bank account can be seized to satisfy the settlement. Therefore, a respondent is compelled to respond regardless of the cost of legal representation, which is incurred over and above any financial settlement.
It is for this reason that it is incumbent on the DCRC to perform its investigative duties with complete neutrality, giving appropriate weight to evidence in a fair and truthful manner. The Commission's director, Judith Morrell, is responsible for making sure that all investigations adhere to the highest possible ethical code, especially because the investigative process tends to deal with very personal information and is subject to public record.
Mediation (referred to as "conciliation") is encouraged at all stages of the complaint process for possible resolution. If parties are successful through mediation, the complaint ends there. However, if mediation fails, the investigation continues to determine if there is probable cause.
An investigation must provide evidence or the lack thereof in order to determine probable cause or not in a civil-rights case. The investigative latitude is expansive. Both the complainant and respondent provide names of witnesses to the DCRC. However, an investigation is not limited to just those witnesses, and the DCRC can reach out and interview anyone it deems potentially relevant to a case. Questionnaires are sent to any number of identified and potential witnesses; fact-finding interviews are conducted; and requests for production of documents from witnesses is permissible, as well as on-site inspection and examination of all sorts of documents belonging to the respondent, including proprietary financial records and employee files.
Once the facts and evidence are gathered, the investigator "submits a case summary containing a recommendation for probable cause or no probable cause" to the director, according to the DCRC's "Complaint Resolution Process (March 16, 2000)." If the director makes a finding of probable cause, then a "determination of probable cause" is given to the commissioners for review and/or a public hearing is scheduled.
The investigator and director are the only two authorities that have full access to all the evidence as the investigation unfolds. The question is: What criteria govern the information to be included or discarded for the probable-cause determination? Are there explicit standards, or is it primarily subjective? The director is solely responsible for framing the determination of probable cause that moves a complaint along the process. How can the commissioners adequately review a determination of probable cause when the only information they see is what the director presents in the determination?
Notification of the public hearing is sent to all parties. An administrative law judge presides over the hearing. After hearing the facts and evidence of the case, the judge issues a recommended decision (referred to as a "recommended ruling") as to whether harassment or discrimination occurred.
The DCRC can adopt, modify, or reject the judge's ruling and, upon review by commissioners, can issue its own ruling (referred to as the "final order"). Once a final order is issued, either party can appeal this decision in district court. Keep in mind that in 2003, the DCRC resolved 155 complaints, resulting in monetary awards of more than $316,000. However, only two cases had probable cause that resulted in a public hearing - both of which are in appeal.
The Botsko Case
For purposes of illustration, the case of Ingleore Nabb versus David Botsko deserves scrutiny because the parties participated throughout the gamut of procedure, from complaint to appeal in district court, where the case is currently pending. But this case represents more than just an employee's claim of injury or an employer's claim of innocence. The process goes directly to the heart of the issue of justice in matters of misconduct and unfairness relative to discrimination, a social flaw considered unacceptable in a civilized society to the degree that our governments, both local and national, have mandated a special adjudicating body to govern its eradication.
But is the process designed to effect this mandate, or is its structure potentially destructive to individual rights and reputation?
Naab is an ex-employee of David Botsko who worked for him as a dental assistant from early March 1997 through early December 1999. Naab, a 63-year-old female German-born American citizen, quit on December 7, 1999, filing a complaint of sexual harassment and national-origin, age, and gender discrimination, as well as a claim that she was constructively discharged, against Botsko in March 2000.
A public hearing was held on April 14 and 15, 2003, after which Administrative Law Judge Kevin Visser issued a recommended ruling in favor of Botsko, suggesting dismissal of the case against him for lack of evidence that met the threshold for proving harm as a result of harassment or discrimination. "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," stated Visser's ruling.
Subsequently, the case was reviewed by the commission, and the judge's ruling was rejected in favor of complainant Nabb with a determination that Nabb did establish her claims of harassment, discrimination, and constructive discharge, issuing a final order that included damages in the amount of $58,017.56. Botsko appealed the Commission's final order and is awaiting a decision from the district court.
Nabb versus Botsko involves many unexpected twists and turns. Some examples include :
· A majority of the respondent's witnesses were declared "not credible" in the "Determination of Probable Cause";
· A commissioner publicly accused the DCRC director of withholding two testimonies that favored respondent Botsko and of stated bias against respondent Botsko during closed session;
· Minutes of closed session could feasibly support an allegation of bias by Director Morell;
· A commissioner was removed for misconduct including ex parte communication;
· An appeal judge recused himself from a hearing appeal because of ex parte;
· A witness for the respondent alleged her deposition was falsified by the DCRC and was denied access to the tape of her testimony;
· A witness for the claimant recanted her testimony made during the public hearing;
· A motion was filed to request the release of tapes of closed session, upon which DCRC filed a motion to resist release of tapes; and
· The complainant's attorney levied respondent's bank account, extracting $58,141 before an appeal was decided and final judgment issued.
This is just the surface. What is below the surface reveals a drama of evidence and testimony that reveals the pitfalls of a unique process that might very well provide a civil-rights commission authority that can undermine the very rights it was created to protect. The intent is noble but the implementation, as shown here, can be dangerously intrusive and destructive.
This story will continue in next week's issue.
Full disclosure: David Botsko has been the author's dentist for more than 15 years. McCarthy was asked to submit a letter of testimony on Botsko's behalf in 2000, and hers was one of the many that the DCRC determined to be non-credible.
