Civil Rights Division: State auditor’s report criticizes speed, transparency.

Report: Colorado too slow, not transparent enough dealing with civil rights complaints

Colorado’s process for investigating and ruling on civil rights complaints is too slow, is handled without transparency and accountability, and violates the state’s open-meeting law, a newly released state audit found.

The Civil Rights Division violated state statute by not completing 367 of 933 complaints reviewed — or 39% — within 270 days, instead taking almost a year on average to complete its investigations, according to a state auditor’s report released Wednesday. Complete data was available for only 933 of 1,292 complaints during the period reviewed.

“Overall, the division has not implemented policies, procedures or guidance for staff to ensure that staff proceeds with investigative activities in a timely manner,” the report stated.

The state audit follows criticism of the Civil Rights Commission by the U.S. Supreme Court in the case of Jack Phillips, the owner of Lakewood’s Masterpiece Cakeshop who wouldn’t bake a cake for a gay couple, citing his own religious objections. The commission was reprimanded for not treating the case fairly. Phillips dropped a lawsuit against the commission after it agreed to halt its own actions against him.

Jill Sarmo, spokeswoman for the Colorado Department of Regulatory Agencies, said the state will implement the auditor’s recommendations to improve civil rights investigations “in our pursuit to best serve the people of Colorado.”

Auditors said they found it difficult to assess whether the Civil Rights Commission — which rules on investigations conducted by the division — is operating fairly and in an accountable way because of its lack of documentation. They also cited investigation lag times as partially affecting decisions.

“The Colorado Civil Rights Division does not investigate complaints in a timely manner and uses time extensions that statute provides to the parties to allow itself more time,” the report stated. “The Colorado Civil Rights Commission could not provide evidence of how it makes decisions related to discrimination complaints, resulting in processes that are opaque and prevent the public from gaining assurance that it operates in a fair and consistent manner.”

The division agreed with three of the audit’s recommendations and only partially agreed with three.

The way the division and commission operate, as shown by the audit findings, are creating a disservice for Coloradans, said Sen. Paul Lundeen, R-Monument.

Lundeen serves on the Legislative Audit Committee. The challenges faced are not partisan, he said, but affect the way civil rights are protected.

If they are not corrected, “that all leads to a crisis or a potential crisis of trust and confidence by the people of Colorado in the Civil Rights Division and Civil Rights Commission, and that’s simply not acceptable,” he said.

Sen. Nancy Todd, an Aurora Democrat and chairwoman of the Legislative Audit Committee, said the audit’s findings were concerning and the committee wants to hear from the division and commission at its November meeting about steps being taken to remedy the issues.

“When you don’t have open discussions and meetings, you’re not being transparent to the people,” she said.

The division couldn’t provide evidence that staff members were actively investigating some of the complaints they had received, according to the audit. The division used time extension requests for 58 of 66 cases reviewed, despite not providing evidence for why more time was needed, as required by statute. From November 2017 to December 2018, the division approved all 1,158 extension requests submitted.

Evidence about decisions related to discrimination complaints also was not readily available from November 2016 to June 2019, with the division not maintaining easily accessible records that could be aggregated to support its decisions, objectives or reporting, according to the audit. In a review of cases in fiscal years 2017 and 2018, the division couldn’t provide documentation for 218 cases.

The commission also voted in closed-door meetings, in violation of the state’s open-meeting law, the audit found.

In 2018, 1,693 complaints were filed with the division, up from 963 in 2015, according to the audit. In 2019, the division had received 1,929 complaints by June. The division is staffed by 27 fulltime employees who investigate complaints and received about $2.4 million in general fund dollars each year in addition to $864,200 of federal funding.

The division cited turnover in staffing as well as an online system that allowed for more complaint filings as the reason for some of the problems identified. Commission members told auditors they believed they were in compliance with state statutes on time extensions, despite their interpretation not appearing “consistent with either the spirit or a plain reading of the law,” according to the audit.

Based on the audit’s recommendations, the division agreed to implement timeliness goals and expectations without extensions, as well as data tracking, by January, according to the report. The division also said it needed to hire eight people to help close cases faster.

The division disagreed that staff members asking parties involved in disputes to request extensions violated state statute, even when they were administrative delays. It did not agree to implement all the auditor’s recommendations, including no longer initiating time extension requests meant for complainants.

Auditors said the commission also doesn’t follow state statute requirements in studying the “extent, character and causes of discriminatory practices.”

The problems, according to the report, hinder the ability to evaluate performance, find out if cases are being completed in a timely manner and don’t allow for accurate data reporting to state leaders that could lead to policy changes. The commission agreed to take these issues into account when updating its online system by the January deadline.

The commission’s discussions in closed-door meetings and taking votes without deliberations among the whole group demonstrated a lack of transparency and accountability, according to the audit.

But the division said it had quasi-judicial and quasi-prosecutorial roles and did not believe its deliberations were subject to documentation or recording. It did agree to conduct training on what hearings qualified for the secret meetings. The auditors said there’s no evidence to show the commission follows its own rules and policies for appeals or hearings.

The problems highlighted in the audit with transparency are not only in violation of law but also allow the division to serve as the investigator, prosecutor and judge on decisions, which often are rubberstamped by the commission, Lundeen said.

And that’s not acceptable for most people in America, he said.

“When we’re looking at a fact pattern that says we need to do a better job of protecting the civil rights of the people of Colorado, then we all need to agree that we need to do that,” Lundeen said.