Colorado’s Civil Rights Division and Civil Rights Commission are too slow to investigate complaints and voted on cases in secret and without any documentation about their deliberations, according to a scathing report released Wednesday by the state’s auditor.
The negative spotlight comes on the heels of criticism leveled against the entities last year by the U.S. Supreme Court in the high-profile case of a Lakewood baker — Jack Phillips of Masterpiece Cakeshop — who refused to make a wedding cake for a gay couple.
The agencies are tasked with investigating complaints filed by people who believe they were discriminated against in employment, housing and public accommodations because of their race, religion, sex, sexual orientation or nationality. The commission is a made up of a panel appointed by the governor and approved by the state Senate, operating under the auspices of the division.
The state auditor’s office found that the “division is slow to investigate complaints and the commission operates in a manner that is not transparent.”
The audit was presented to the Colorado legislatures bipartisan legislative audit committee on Wednesday morning, leaving both Democrats and Republicans saying there is clear room for improvement.
“The purpose of an audit in any branch of government is to suggest where there is room for improvement,” said state. Rep. Mike Weissman, an Aurora Democrat who has worked on issued surrounding the division and commission. “I think we saw there’s some room for improvement here and I trust that improvements will be made.”
State Sen. Paul Lundeen, a Colorado Springs Republican who sits on the audit committee, said the report revealed that the division and commission “has more breakage than any of us should be comfortable with.”
“The reality is this audit says the process is troubled, if not broken,” he said.
Jill Sarmo, a spokeswoman for the Colorado Civil Rights Division, said the agency working to end discrimination.
“We appreciate and will implement the recommendations provided by the Office of the State Auditor for continued process and operational improvements in our pursuit to best serve the people of Colorado,” she said.
Specifically, auditors found that the division’s investigators didn’t complete their investigative work in the 270 days required by statute for 367 of the 933 cases that were reviewed in the audit. The delayed cases, on average, took almost a year to complete.
The possible effects of the elongated cases are increased costs, people opting out of the process to pursue lawsuits instead and the civil rights commission running out of time to hear cases.
“Overall, the division has not implemented policies, procedures or guidance for staff to ensure that staff proceed with investigative activities in a timely manner,” the audit found.
Also, auditors said, the commission “could not provide evidence in meeting minutes or audio recordings that it discussed the cases, applied rules and policies to the reviews and how it decided the disposition of any of the 218 cases it reviewed in fiscal years 2017 and 2018.”
Finally, the auditors said that the commission took votes in executive session in violation of Colorado’s open-meetings laws.
Auditors said that without transparency, the commission’s performance can’t be reviewed, the ability to study causes of discriminatory practices is hindered and there’s no way to tell if cases are being completed in a timely manner. Additionally, auditors said without documentation the commission and division can’t ensure they are providing reliable reports to the governor and state lawmakers.
“Because the Commission makes decisions in closed meetings, there is no opportunity for independent observation of the fairness and consistency of its operations,” the audit said. “The lack of documentary evidence of its decision making compounds the problem, resulting in a process that is opaque to Colorado citizens and policy makers. Even our audit is unable to provide assurance that the Commission is operating in a fair and accountable manner.”
Lundeen echoed that sentiment. “The people of Colorado cant trust something that’s hidden from them,” he said.
The division has agreed to improve the timeliness of its investigations, the audit said, but declined to create records of deliberations because it “functions in both a quasi-judicial and quasi-prosecutorial roles.”
Weissman said he’s encouraged by the division and commission’s dedication to increasing staff to reduce the time of investigations and implement other alterations.
“I think we’ve heard commitment from them to make those,” he said.
The audit is the first step in identifying any changes that might be made to the commission and division during the 2020 lawmaking term.
State lawmakers ordered the audit as part of a measure — House Bill 1256 — passed during the 2018 lawmaking term after a fierce partisan fight over the makeup of the Civil Rights Commission and its investigative duties that occurred against the backdrop of the looming Masterpiece Cakeshop decision.
At one point, it appeared that the commission might not be reauthorized. But with just hours to spare in the session, a deal was reached that changed the panel’s makeup and subjected it to legislative review.
The Supreme Court ruled that the commission acted with bias in ruling against the Lakewood cakeshop and in favor of the gay couple, Charlie Craig and David Mullins, overturning the state’s ruling against Masterpiece‘s actions as discriminatory.
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