The Colorado State Auditor Wednesday released a scathing audit of the Colorado Division of Civil Rights and Colorado Civil Rights Commission that calls into question the agencies' transparency, compliance with several state laws and time delays, about which two lawmakers said: "Justice delayed is justice denied."
The audit looked at how both the division and the commission manage civil rights complaints between the beginning of 2015 and through August of this year.
Auditors made 11 recommendations to the division and commission on how to improve their processes, but the division and commission partly disagreed with seven, leading the auditor's staff to claim that the agencies evidently don't plan to comply with the audit's recommendations.
The Legislative Audit Committee reviewed the audit Wednesday.
The Division of Civil Rights is responsible for enforcing the state's civil rights law with respect to housing, public accommodation and employment. The Civil Rights Commission conducts hearings on complaints filed with the division.
Both have been in the news in the past few years, first on a lawsuit filed in 2014 against Masterpiece Cakeshop of Lakewood and its owner, Jack Phillips, over his refusal to bake a custom wedding cake for an LGBT couple. Phillips refused to do so, saying it would have violated his Christian beliefs.
The U.S. Supreme Court, in a narrow ruling that did not address the issue of public accommodation versus religious freedom, sided with Phillips.
The division and commission were both reauthorized on the last day of the 2018 legislative session, a session-long battle over whether the commission is biased against Christians, as was claimed by Phillips and as stated by then-Supreme Court Justice Anthony Kennedy.
The audit reviewed Wednesday by the legislative panel said the Civil Rights Division has handled 6,712 complaints between 2015 and August 2019. Of those complaints, 4,968 dealt with employment discrimination. Division Director Aubrey Elenis said they handle about 160 complaints per month.
The audit found that in almost 40% of the cases examined, division staff were unable to complete their work within the 270-day statutory deadline.
"On average, the Division took almost a year to complete its work on each of these delayed cases," the audit stated, and some cases took up to 450 days. In many of these cases, the audit said, Civil Rights Division staff asked the parties -- either the complainant or respondent or both -- to request an extension because the division staff didn't get its work done on time. State law does not allow the division to request extensions -- only the parties in the complaint can do that -- so the division staff asked the parties to do it for them.
The commission then "rubber-stamped" those requests, according to lawmakers on the committee, and did so without obtaining required documentation that the extension was for "good cause." But some cases wound up being abandoned because the division just ran out of time to complete its work, auditors told the committee.
The division does not establish goals or expectations for staff to complete its work, the audit stated, including how long staff should take to review information, how quickly the staff should contact the parties to request information or how quickly staff should "make their probable cause determinations to allow sufficient time" for things such as mediation, appeal or hearing setting -- all which must take place within the 270-day statutory deadline.
Finally, the audit stated it could not verify information that is provided to lawmakers in an annual report on Division and Commission activities.
In response, the Division claimed it could not meet deadlines because its caseload has increased: 15% in fiscal year 2017 and 49% in fiscal year 2018. The division has had turnover issues, according to the audit, and when someone leaves, no one else picks up those cases until new staff are hired.
Elenis told the committee they posted job openings on Monday for eight new investigative personnel.
Democratic State Sen. Pete Lee of Colorado Springs said he was "perplexed" by the division's use of extensions. When the General Assembly passed the law on the 270-day deadline (increasing it from 180 days), or when the commission and division were reauthorized just a year ago, those laws were passed to ensure that citizens get expedited access to justice, he told Elenis.
She responded that failing to obtain those extensions jeopardized the rights of all parties in the complaints.
Elenis also claimed that parties often don't know they can request an extension, but Auditor Monica Bowers said that's one of the first things parties are told when the complaint process begins.
If the division needs more time, it should come to the General Assembly and ask for a change in state law rather than "winking" at the statute, said Republican State Sen. Paul Lundeen of Monument.
"We didn't realize it was so out of hand," replied Commission Chair Miguel Elias. "You sign things [such as the extension requests] because you think they're doing a good job."
While Elias said there would be changes, the division said in its response to the audit that it would continue to request those extensions. And Elias pointed out that there's "nothing else in place" for now. "They can't finish complaints if the commission shuts them off," he said.
The audit also found that "The [Civil Rights] Commission does not operate in a manner that allows for transparency or accountability," noting that the commission could not provide meeting minutes or audio recordings in which it discussed 218 cases or how it decided those cases.
The commission votes in executive session, in violation of the state's Sunshine Law, the audit stated.
"Because the Commission makes decisions in closed meetings, there is no opportunity for independent observation of fairness and consistency of its operations," the audit stated. "The lack of discussion among commissioners about appeals and hearing worthiness cases prior to voting" -- the commission goes by the recommendation of division staff and/or the commissioner appointed to handle the case, the audit stated -- is "misleading," the audit said, and could lead the public and policy makers to interpret the commission's vote as "meaning that the cases underwent thorough consideration and discussion" by the entire body.
Lundeen called the apparent violations of the Sunshine Law's open meeting provision the "heart of what this is all about. This goes to the ability of the ability of the people of Colorado to have trust and confidence in something as fundamental as the division and commission...."
Lundeen also took issue with how the commission responded to the audit recommendations, which was to partially agree, and as Lundeen put it, to partially disagree.
"How can you partially disagree with something as fundamental as obeying the law?" Lundeen asked.
Elias said the commission does "have robust discussions regarding cases" in executive session, adding that the body doesn't vote in public to protect the confidentiality of the parties involved, Elias said.
The audit recommended the commission document their deliberations on appeals and hearing worthy-cases and vote on those issues in open session.
However, the commission said in its response to the recommendation that its confidential discussions are not subject to documentation and it "will not engage in creating a record of its deliberations," though it would "engage in training to review and discuss applicable factors" so that it can continue to discuss these matters behind closed doors.
Not good enough, the audit indicated, saying that the commission's plan "to engage in training ... is not relevant to the recommendation..."
Further, it said, "there is no evidence that the Commission follows its own rules and policies to decide cases for appeal or hearing worthiness," and that it plans to continue to decide cases based on the recommendations of a single commissioner, its representative from the Attorney General or division staff, rather than allowing commissioners to discuss those cases.
At one point, Elenis implied that they had received advice from the attorney general's office that they could ignore the state's Sunshine Law. That led to a request from committee chair Sen. Nancy Todd of Aurora that when the division and commission return to the committee in November, they bring their legal counsel with them. Elenis then walked back that assertion. A spokesman for the Attorney General's office said they have never advised the commission to vote in cases in executive session.
Auditor Dianne Ray told the committee that they were disappointed by the disagreements by the division and commission on the recommendations. That means things won't change, she said.
Lundeen told Colorado Politics after the hearing that there's too cozy a relationship between the Division and the Commission, with the latter supposed to be an independent body.
"It seems as though they act as one, and that doesn't support impartiality," Lundeen said, adding that the division relies on the commission to act as a "rubber stamp" on administrative and fundamental material questions. "That's not appropriate," Lundeen added.
Democratic State Rep. Paul Weissman of Aurora said the audit shows there's room for procedural and administrative improvements in how the division and commission does its work. Both are in a time of transition and receiving more complaints, Weissman said.
"This is meant to be a process that is less expensive and timely for those who experience discrimination rather than going through the courts," he added. "The business community wants that, too."