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Attachment 13_Human Rights Department MemoMasterpiece on the Mississippi July 21, 2010 TO: Michael Van Milligen, City Manager FROM: Kelly Larson, Human Rights Director SUBJECT: Department Reorganization Dubuque bfrig All-America City 11111 2007 The purpose of this memorandum is to propose an implementation plan for one of the Safe Community Task Force (SCTF) recommendations adopted by the City Council on July 19, 2010. Specifically, the SCTF recommended that increased human relations efforts become a priority, and that we work towards increasing tolerance, mutual understanding, and community solidarity. Our proposal described below also is consistent with the City Council's sustainability priority which defines sustainability as the community's ability to meet the environmental, economic, and social equity needs of today without reducing the ability of future generations to meet their needs. We are proposing a restructuring of our department so that we have sufficient staff time to expand our intercultural competence, conflict engagement and community building efforts in support of this recommendation. DISCUSSION The responsibility of the Human Rights Commission and our Department is set forth in Chapter 8 of the Dubuque Code of Ordinances. One part of that responsibility is to investigate and determine the legal merits of discrimination complaints. Additional responsibilities include: 1) mediating discrimination complaints; 2) identifying barriers to equality of opportunity and working to address those barriers; and 3) working to reduce tensions between groups. Thus, our work already has two basic components — human rights and human relations. A review of our statistics indicates that spending the bulk of staff time on enforcement is not effectively addressing the conflict that exists around cultural differences or the barriers to opportunity that people may be facing. On average, only ten percent of the cases filed in our office over the past five years resulted in a finding of probable cause to believe that the law was violated. These statistics are consistent with those on a state and federal level, and hold true across the various cultures we serve. This is due, in part, to the reality that these laws are largely designed to address intentional discrimination and do not effectively address differences in culture that may be impacting communication and understanding in the workplace or that may be providing an advantage to one culture over another. Yet the number of cases filed remains fairly steady throughout our community and the nation, suggesting there are many, many members of the public in the midst of conflict around these issues. Our staff has the skills to work directly with people to respond to and resolve conflicts in a more proactive way, to raise intercultural skill levels in our own organization and out in the community, and to address systemic change so that our community benefits from diversity while simultaneously remaining united. The research indicates that efforts devoted to these very areas improve the ability of people to work more effectively across differences and navigate conflicts proactively. Yet, with only three employees in our office, we find that we spend most of our time on the reactive enforcement side. In addition to resource limitations, it is very difficult to develop the trust and neutrality that is necessary for effective mediation or a learning environment if the same people doing that work are also responsible for enforcing the law. In 2006, One Ummah Consulting issued an Intercultural Sensitivity Report for the City of Dubuque. Throughout that report, the consultants recommended against mixing the enforcement role with the intercultural competence and development role. They specifically noted that the Human Rights Office needs a shift in focus to meet the challenge of "balancing proactive work with the reactive work of investigations," and that "most research in the field of organizational structure in relation to diversity says that the capacity - building function should be separate from the investigating function ... [because] an organization trying to be in compliance is different from an organization attempting to demonstrate a level of commitment to diversity and inclusion." Given the recent recommendations of the Task Force, we think the time is right to begin making the more proactive shift that One Ummah recommended. We are proposing restructuring that will remove our staff members from making enforcement decisions in order that we may spend more time on mediation, intercultural competence, conflict engagement and community building. Enforcement decisions would be made by the City Attorney's Office as described below. This approach will allow us to increase prevention efforts and intercultural understanding, while also safeguarding the enforcement process for cases where legal rights have been violated. Current Complaint Investigation System Currently, the following process is followed when someone contacts our office with a discrimination complaint. Intake Specialist Carol Spinoso has an initial conversation with the person. If the person is a private resident complaining about a City department, Carol refers the person to the Iowa Civil Rights Commission to file a complaint. If the person is a City employee complaining about another City staff person, I meet with the person and refer the person to the Personnel Department so Personnel Manager Randy Peck can perform an investigation and determine if discipline is warranted. The person always has the option to file a complaint with the Iowa Civil Rights Commission, as well. If the person is a private resident complaining about a private business or housing provider, then the case remains with our office. The cases that remain with our office proceed as follows. Carol assists the person with filing a complaint with our office and serves the complaint on the person or entity accused of discriminating. If both parties indicate they would like to mediate, Carol calls an outside mediator to conduct a mediation session. We use an outside mediator because all of our staff members are involved in making the ultimate legal decisions on these cases — thus we cannot serve as neutral mediators in our current system. If the parties reach an agreement during mediation, the case is closed. If the parties do not reach an agreement, the case is assigned to Human Relations Specialist Molly Menster. Molly then reviews the complaint and response, interviews the person who filed the complaint, and determines whether or not the case warrants further investigation. If the case does not warrant further investigation, she will draft an administrative closure. The person who filed the complaint then has the opportunity to submit additional information to me for consideration. I review the case and any additional evidence and then determine whether the case should be closed. When a case is closed, I offer both parties the opportunity to have a further conversation with me regarding the case so that we can make sure the parties understand the outcome. Parties rarely pursue that offer. If Molly or I decline to administratively close a case, then Molly begins an investigation. She will interview the Respondent, gather documents, interview additional witnesses, and ultimately write a recommendation to an Administrative Law Judge regarding whether or not there is probable cause to believe discrimination has occurred. If there is a finding of probable cause, we attempt to settle the case and if it does not settle, we send the case to the City Attorney's office for public hearing. If there is a finding of no probable cause, we close the case and I again offer the parties the opportunity to have a further conversation with me so that they understand the outcome. Again, parties rarely pursue this offer. The process as it currently works often leaves parties dissatisfied with the outcome, angry with our office, and even more distrustful of government and the system itself. In other words, a decision is made but there is not necessarily a true "resolution" for the parties. As a result, the conflicts and dissatisfaction often continue to play out in the community. We think there is a way to improve the chances of real resolution. Proposed Complaint Investigation System In the proposed system, Carol would continue to handle the initial contacts on discrimination complaints. However, we would create an additional option at the beginning of the process where any of our staff would be available to perform counseling with the caller, whether that person is a private resident complaining about a private business or a City department, or whether that person is a staff member complaining about a situation between employees. During that counseling, we would educate the caller on the legal requirements for proving a claim of discrimination, and describe to them their options. We also would develop a pre - complaint mediation option that would allow the caller the discretion to try to work out the issue with the accused before pursuing litigation. Molly and I would be available to conduct those mediations, and we would train Training and Workforce Development Coordinator Andre Lessears to be able to do so as well. If the caller opted not to attempt mediation, or if mediation was attempted and failed, the person could pursue a formal complaint. At this point, our office would step out of the enforcement process. If the claim is against a City Department, Carol would refer the person to the Iowa Civil Rights Commission for filing, as we do currently. If the claim involves the possible need for internal disciplinary action, the case would be referred to the Personnel Department as it is currently. If the complaint is against a private business, Carol would assist the caller in filing a formal discrimination complaint, but the complaint would be filed with the City Attorney's office rather than our office. Instead of Molly or me being involved in the investigations and legal determinations, Assistant City Attorney Crenna Brumwell would be the person who would perform administrative closures and investigations. At the close of a case by the City Attorney's office, the parties could be referred back to our office so that we could assist them in understanding the legal outcome and helping them identify any steps they might be able to take in the future to obtain more positive results. We think parties will be more willing to follow up with us when we are not the ones who are making the legal determination on their claim, and this, in turn, will help us educate parties not only on the law but also on the areas where intercultural communication and conflict skills can be developed in the interest of prevention. This approach will improve our ability to build trust and understanding across cultures, and to develop resolutions of the intercultural conflicts that underlie many of these cases. In summary, these specific items that would no longer be handled by our office: 1) Complaint investigations would be handled by the City Attorney's office. Our role would be early intervention and mediation opportunities for parties who come to us. If mediation fails and /or a party chooses to pursue a formal investigation instead of mediation, we would assist them with filing that complaint but would not make legal determinations through our office. 2) Public hearings — the Human Rights Commission would remain intact to perform their existing duties, including handling public hearings, and the City Attorney's office would take those cases forward as they do now. There may be circumstances where the City Attorney's office would need to hire outside counsel due to their involvement in an investigation, but our statistics would indicate those instances would be very rare. Only four cases have gone to public hearing in the eleven years I have been here. 3) ADA/504 Compliance — our administrative policy already vests leadership of this initiative with the Personnel and Housing Departments. Our office has been informally leading these efforts. While we would continue to be a resource on these issues, we would remove ourselves from making compliance decisions or leading this compliance effort. Thus, there would be no change to the law or enforcement process itself - it is just that the investigations and compliance decisions would be made by.a separate department in order to allow us to more effectively engage in prevention, mediation, and improved understanding across cultures on the front end. Expansion of Intercultural Competence and Community Building Efforts Currently, Molly Menster and I work across departments with Andre Lessears to lead the City's intercultural competence initiative. Reorganizing the investigation process as described above will allow us to expand and better target those efforts. We would bring Andre into the Human Rights Department, and the three of us would be responsible for the following work: 1) Conflict Engagement: performing EEO counseling; adding /expanding mediation opportunities both internally for our own employees and externally for the community; further building the capacity of the Dubuque Dispute Resolution Center for neighborhood disputes. 2) Intercultural Competence /Systemic Change: Coordination of ICC efforts, including steering, training, and employee engagement teams; working with local organizations and businesses to assist them in developing their own intercultural competence programs. 3) Community Engagement: partnership efforts in the community to improve the ability to build unity through diversity and prevent fractures; this would include capacity building with the Multcultural Family Center and faces & voices, and with other organizations who choose to improve their intercultural competence in long -term, strategic ways. 4) Workforce Development: Andre would continue his work with Personnel Director Randy Peck on employee recruitment and retention issues. In addition, he would expand his work with employee involvement teams. These teams are designed to address sources of conflict and service delivery concerns within departments by engaging employees directly in decisionmaking and resolution. BUDGET AND STAFFING IMPACT The budget for our department would be reorganized, but we would not need additional operational funds for our office at this time. The Training and Workforce Development Coordinator would work out of our office, so his salary and benefits would be transferred to our budget, as would the $10,000 budget that currently exists in the Personnel budget for intercultural competence training and development, since our office would become the lead department for those efforts. We would continue to maintain our contract with the Department of Housing and Urban Development (HUD), though we would expect that Crenna Brumwell would attend mandatory HUD training. The budget for the City Attorney's office would be impacted. They are currently at capacity with their caseload and staffing. Consequently, they will need to make workload adjustments in order for Crenna to have sufficient time to conduct case investigations. In order to free Crenna's time for case investigations, we propose that the City contract out a portion of her current caseload. The City Attorney's Office currently handles 4 -5 litigated workers' compensation cases each year. Each case takes a considerable amount of time reviewing volumes of medical records and responding to requests for production and discovery. An average size file would consist of approximately 5,000 pages of medical records, personnel records, and discovery, while a complicated file could reach as high as 10,000 pages. In addition to the litigated workers' compensation claims, the City Attorney's Office provides advice and consultation on other workers' compensation cases over the course of the year. Often a significant amount of time must be dedicated to researching unique facets of worker's compensation law. This proposal would contract the workers' compensation cases out to an attorney who specializes in workers' compensation law. An attorney who specializes in this area offers an increased efficiency and additional knowledge to draw from. Our human rights caseload over the past few years, in contrast, indicates that we have averaged about 9 investigations and 10 administrative closures per year. While this exceeds the number of workers' compensation claims in a year, the average time commitment for administrative closures is minimal — these are cases that do not warrant full investigation. The remaining human rights claims, on average, are less involved than workers' compensation cases and utilize the additional knowledge Ms. Brumwell has in human rights law. In addition, Crenna could investigate these cases and make legal determinations in a more efficient manner than Molly because Crenna's focus would be purely on the legalities rather than simultaneously trying to build understanding. The end result is substituting human rights claims for workers' compensation claims would involve a comparable amount of Crenna's time. The estimated cost to contract out workers' compensation claims is $2,000 to $10,000 per case, depending on how involved the case is. Cases that proceed all the way to litigation would fall on the higher end, but most cases that Crenna has handled in recent years would have fallen on the lower end of the scale. Our best estimate is between $8,000 and $20,000 per year to contract these cases out. The Human Rights Department budget contains $15,700 in enforcement funds that could be transferred to the City Attorney's office - $12,000 in our public hearing line item and $3,700 for legal subscriptions. On average, we spend approximately $3,000 of these funds each year paying a transcriptionist for case interviews and paying administrative law judges who make the finding of cause or no cause following an investigation. The remaining $12,700 could be available for worker's compensation contracting costs. The only caveat to this arrangement is that the City Attorney's office may need additional budget allocations in years where a case proceeds to public hearing. In the eleven years I have been here, four cases have proceeded to public hearing. In the event that we have workers' compensation costs in a year that exceed $12,700, we could cover those costs through the workers' compensation line item. There is an annual budget of $660,679.00 for workers' compensation claims and administration deposited in the workers' compensation reserves. The lowest that balance has dropped in the past five years is $53,427.00, which is more than sufficient funding to cover maximum spending of $20,000 on contracting for administration. A final option for generating additional funds to . assist with costs, if necessary, would be to charge businesses for our intercultural consulting services. While this may be an option for the future, it is not recommended at this time. ACTION REQUESTED recommend your further consideration of this proposal. cc: Barry Lindahl, City Attorney Crenna Brumwell, Assistant City Attorney Randy Peck, Personnel Manager Jenny Larson, Budget Director Andre Lessears, Training and Workforce Development Coordinator Molly Menster, Human Relations Specialist Carol Spinoso, Intake Specialist