State Audit: Colorado Civil Rights Commission Is Not Transparent Or Accountable In Decisions

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David Zalubowski/AP Photo
Baker Jack Phillips, center, owner of Masterpiece Cakeshop, is surrounded by supporters for a cellphone photo inside his shop after the U.S. Supreme Court ruled in his favor, Monday, June 4, 2018.

State officials in charge of overseeing the Colorado Civil Rights Commission pledge to “do better” after a new audit found that the commission wasn’t transparent or accountable for its decisions. Auditors couldn’t even determine whether the commission was following its own rules and procedures.

“And for audits to be effective, there must be documentation to look at,” auditor Kate Sabott said. “Overall, the commission could not provide evidence to us of how it makes decisions related to discrimination complaints. Instead, we found that the commission’s processes were opaque and prevent the public from gaining assurance that it operates in a fair and consistent way.”

The audit released Sept. 18 found that the commission was also violating state open records laws by conducting business in closed-door meetings. And nearly 40 percent of the cases were not investigated in a prompt manner as required by state law and had “long gaps in the process for some cases,” according to the audit.

Sabott presented the findings to the bipartisan state audit committee Tuesday. Members in both parties agreed the commission needed to change how it is operating and found the audit problematic.

“I am deeply troubled that there was any commission or anybody who is above the law,” Republican state Rep. Lori Saine of Firestone said. “None of us are above the law. And so if we don't hear something satisfactory at our next November meeting, it might be advisable to write some statute and make this extremely clear.”

Democratic state Sen. Nancy Todd of Aurora chairs the audit committee.

“I think what you're hearing from many of us on audit committee is that there needs to be a revisiting of the role of the commission and how that is done in terms of public meetings, in terms of transparency and openness,” Todd said.

The commission responded to the audit’s recommendations and did not agree to make a public record of how it reaches its decisions or change the confidential nature of deliberations.

“Because the commission functions in both a quasi-judicial and quasi-prosecutorial roles, the commission’s confidential discussions are not subject to documentation. The commission will not engage in creating a record of its deliberations,” according to a written response from the commission included in the audit report.

Republican state Sen. Paul Lundeen questioned why the commission didn’t fully agree to make the changes the audit recommended.

“How can you possibly partially disagree with something as fundamental as obeying the law, protecting people's civil rights and making sure the business of protecting people's civil rights is done in a way that's consistent with the law?” Lundeen asked. “What is your response to this?”

One commissioner who testified before the committee said the group did discuss cases but that deliberations and decisions were not documented to protect clients.

“In order to protect the respondent as well as the complainant, we do that behind closed doors now or in executive session,” commissioner Michael Rene Elias said.

He said that’s just the way it has always been done.

“And so now we do understand that we have to go ahead and look at things a little bit different,” Elias said. “We have to look at our work is significantly different and start looking at different ways of doing business. And we will do that. We will do that and it's going to take further training.”

The commission is charged with hearing civil rights complaints against employers, landlords and others, and has the authority to issue penalties and mandate mediation. The legislative audit is part of a restructuring that happened in 2018 when state lawmakers reauthorized the commission. They made changes to ensure a mix of Republican, Democrat and Unaffiliated voters would serve on it. During the time of the audit, from fiscal years 2017 and 2018 the commission decided 218 cases.

Department of Regulatory Affairs Executive Director Patty Salazar said the audit was “enlightening.”

“We are in complete agreement that we can always do better,” Salazar said. “We are committed to improving our process and our operations and quite frankly do appreciate this very candid discussion.”

She told the committee she took “copious notes and I look forward to continuing the dialogue internally at our agency as well as with the commission and with all of you as we move forward.”