Understanding BOLI's process for civil rights enforcement

Editor's note: The following comment was posted by Jack Roberts on another thread. Roberts is a former Labor Commissioner in Oregon (and a Republican). It's a good explanation of the Bureau of Labor and Industries' civil rights enforcement process via administrative law. This post is an excerpt of the comment, which can be read it in its entirety here--Carla

BOLI is able to use an administrative enforcement process, which means you can use a hearings official instead of a judge and the complainant doesn't have to hire a lawyer. It is much quicker and less expensive than either civil or criminal enforcement in court.

After an initial investigation, if BOLI finds that there is good cause to go forward with the complaint, then the complainant has the option to withdraw from the BOLI process and file a new complaint in federal court. That's where the really good cases usually go because the federal court's hand out much bigger awards and the lawyers are willing to work on a contingency basis. But federal courts generally require you "exhaust" your administrative remedies first, which means you get BOLI to agree not to pursue their case (which BOLI always does, gain saving taxpayer's money).

Because this is such an efficient system, the EEOC contracts with BOLI to handle Oregon cases where the discrimination claimed violates both state and federal law.

All in all, this is a particularly good system for individual defendants who want their complaint to be heard but don't have the money or can't interest an attorney in taking the case on a contingent fee basis. It is also much better for small businesses that bear the cost of responding to frivolous complaints.

Comments

  • Oregon's budget can't afford kroger's ambition (unverified)
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    from KATU

    Along similar lines, Kroger wants to create a civil rights protection unit in his office. But another Democrat, Labor Commissioner Brad Avakian, already enforces state civil rights laws.

    Kroger says he isn't trying to usurp Avakian. Still, Kroger's move strikes some in the Legislature as the action of a newcomer to state government who has unnecessarily stepped on another officeholder's turf.

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    thanks for helping to clarify, Jack. still, this does not seem to cover the critical area of hate crimes, among other issues outside the purview of BOLI. and despite those dumping the hate on Kroger, i am in agreement with him that the lead on civil rights should be the Dept of Justice. it may take time to set that up, given the budget, but it does seem necessary. the AG is, after all, the State's Lawyer (in effect). Avakian is our shop steward (an honorable position).

  • Still not necessary (unverified)
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    The AG is BOLI's lawyer and it doesn't make sense to create juridiction conflicts between attorneys and their clients. The DOJ's role is to represent agencies, not get out ahead of them and compete for limited resources.

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    ta, prosecuting hate crimes are the responsibility of the district attorney's office. In addition to wanting to encroach on BOLI's turf, Kroger seems not to understand the distinction between the DAs, who are prosecutors, and the AG, who is basically the state's lawyer.

    One example: While campaigning, Kroger said he wanted to start bringing criminal prosecutions against pollutors. Well, just last month a criminal indictment was brought against an alleged pollutor in Sweet Home. Who brought it? The Linn County District Attorney.

    Kroger, a former prosecutor, seems to be the classic example of a hammer wanting to turn every problem into a nail.

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    "The DOJ's role is to represent agencies"

    No, it's to represent Oregonians, which is exactly the point Kroger was making in his campaign, and which differentiated himself from Macpherson. The AG represents the interests of the people of Oregon, not inanimate state agencies.

    Good for the Linn County DA, Jack. But for the most part, local DAs have neither the funding, the expertise nor the manpower to execute investigations and indictments for things like this--which is why Kroger was pressing for this option.

    Unless Avakian can take polluters to court, this is not a usurpation of his role--it's an assertion of DoJ's.

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    Oh, sorry--the idea that federal court is the proper first place for violations of state law is CRAZY. For one thing, federal courts are notoriously biased against the individual/common trust, and for the government or corporate entity.

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    Unless Avakian can take polluters to court, this is not a usurpation of his role--it's an assertion of DoJ's.

    Actually, the DEQ handles the process for polluters. I don't know what the court process is, but they seem to do a pretty decent job with enforcement.

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    "Actually, the DEQ handles the process for polluters. I don't know what the court process is, but they seem to do a pretty decent job with enforcement."

    No, I don't think they do--and that was Kroger's point in citing the company that had been slapped with a violation over SIXTY times, without any escalated consequences or injunctions even apparently considered. No one is getting charged with a crime for violation state laws, and it's (duh) led to companies considering fines to be simply a cost of doing business.

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    No, I don't think they do--and that was Kroger's point in citing the company that had been slapped with a violation over SIXTY times, without any escalated consequences or injunctions even apparently considered. No one is getting charged with a crime for violation state laws, and it's (duh) led to companies considering fines to be simply a cost of doing business.

    I think that's a valid criticism of DEQ, if true. But I'm not yet convinced that a criminal court process is the best and most efficient way to deal with that problem.

    Certainly giving DEQ more teeth would help. Additionally, if they've sustained the same kind of budget cuts that BOLI has over the last 10 years, it seems like that would be the first to address.

    I'm not saying that the enviro stuff or civil rights stuff for Kroger shouldn't be considered. But it does seem like other agencies who deal with these matters have experienced some pretty tremendous budget cuts. I haven't heard much about restoring those budgets first, which makes me wonder.

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    Oh, sorry--the idea that federal court is the proper first place for violations of state law is CRAZY. For one thing, federal courts are notoriously biased against the individual/common trust, and for the government or corporate entity.

    Most civil rights cases involve violations of both state and federal laws. Those are the ones that are taken to federal court. It is the plaintiff's attorneys who have the choice to withdraw from the BOLI process and take the case to federal court. A lot of them do so. Perhaps they have a different view of what is in their client's best interests than you do, torridjoe, but maybe that's why their clients consult a lawyer instead of the fire department.

    It is also my understanding that the main complaint against DEQ enforcement has been their lack of funding. If additional resources are available--and based on last Friday's revenue projections it doesn't sound like they are--I'd first use them to beef up the DEQ's civil enforcement resources before I would fund a special criminal enforcement team.

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    Jack, I'm the one who's pulling us off track a bit, because I'm working more from the original article where enviro protection was more the focus (and more Kroger's focus in his campaign), whereas you're talking more about the civil rights component--which makes sense in the comments, since that's what THIS post is like.

    On civil rights you're no doubt correct; even a quick look at history shows federal courts ahead of the curve when it comes to civil rights compared to individual states.

    Sorry to get the two threads tangled up.

    On point to your last paragraph though--beefing up resources won't do any good without the threat of indictments or injunctions behind them, is Kroger's central point. More widespread and bigger fines are just factored into the bottom line.

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    On point to your last paragraph though--beefing up resources won't do any good without the threat of indictments or injunctions behind them,is Kroger's central point. More widespread and bigger fines are just factored into the bottom line

    I'm having trouble seeing the basis for this statement. If more widespread and bigger fines are "just factored into the bottom line", then I suspect court costs and judgments would be as well.

    Unless you're talking about jail time--and I'm not aware of any appropriate statutory guidelines for that.

  • genop (unverified)
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    What a waste of tax dollars it would be to have a State AG dedicated civil rights attorney investigate police brutality after the DA's office clears the officers of wrongdoing with their grand jury dog and pony show. Apparently we have higher priorities than second guessing that process?

  • David (unverified)
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    Unfortunately, AG Kroger is the type of "politician" who has a large ego and wants more power, regardless of what anyone else thinks. Just take a look at the DOJ website, with his photo and kudos to himself taking up almost the entire home page. Sorry, but the days of having a respectful, even if at times somewhat understated, attorney general like former AG Myers are over for the time being. You get what you vote for.

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    "Unless you're talking about jail time--and I'm not aware of any appropriate statutory guidelines for that."

    I'm talking--at least Kroger was--about shutting down the business and establishing criminal responsibility among top personnel. Being hauled into court is a lot different than paying a fine.

    "Sorry, but the days of having a respectful, even if at times somewhat understated, attorney general like former AG Myers are over for the time being. "

    And hooray for that!

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    I'm talking--at least Kroger was--about shutting down the business and establishing criminal responsibility among top personnel. Being hauled into court is a lot different than paying a fine.

    Okay...

    So again, unless there's jail time, how is this substantively different that expanding and broadening the fines? I don't know if DEQ has the power to shut a business down--but I don't suppose they'd have more power to do it than the AG. DEQ would be administrative. AG would be through the courts.

    I'm sincerely not against a discussion of giving Kroger what he needs to be effective. The problem I'm having is seeing how these things can't be handled by the infrastructure already in place at DEQ (and BOLI) by restoring their funding and giving them what they need.

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    I'm talking--at least Kroger was--about shutting down the business and establishing criminal responsibility among top personnel. Being hauled into court is a lot different than paying a fine.

    Great, because as we all know not enough Oregon businesses are shutting down now.

    Look, no one wants to let businesses get away with thumbing their noses at the law and polluting the environment but I've not seen any evidence that the civil enforcement system itself doesn't work. I have heard plenty of concerns about DEQ being understaffed and not having adequate enforcement resources.

    Personally, I've been very impressed by the professionalism of DEQ staff I've worked with over the years. I also think their goal--which is to secure compliance, not shut down businesses--is the right one.

    If I could, I'd give them more resources to allow them to do their job better before I'd jump to creating a parallel criminal enforcement process I'm not convinced we need.

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    Great, because as we all know not enough Oregon businesses are shutting down now.

    Look, no one wants to let businesses get away with thumbing their noses at the law and polluting the environment but I've not seen any evidence that the civil enforcement system itself doesn't work.

    So Jack, you're saying you're in favor of keeping scofflaw polluting companies open in Oregon--because it's good for the economy? Now THERE'S some flawed analysis.

    When you say you haven't seen evidence that the system doesn't work, how many consecutive violations without remediation does it take for you to lose confidence? Apparently 60 is not enough for you.

    From my interview of Kroger during the campaign, an extended reply on his intent regarding environmental enforcement: Second priority for me is improving Oregon's environmental enforcement efforts. It's a challenge politically to talk about this, because most Oregonians pride themselves on the state's great track record as an environmental leader over the decades, and people have the sense that things are going well, and in fact the statistics don't bear that out. I'll throw out three. Business Week magazine labeled Portland the third most toxic city in America. The official statistics show Multnomah County in the top 1% of counties nationwide for risk of lung cancer due to air pollution, and in fact we're in the top half of that 1%. Ten years ago, almost 100% of Oregon's streams showed improving water quality, now 10% of them are going backwards. So we have some real challenges that I think we need to address. When I look at what's happening, what I see is that we put good laws on the books and then we don't enforce them. Those laws just become words on a piece of paper. One case that exemplifies it for me: there was a small metal plating company in Northwest Portland that was dumping chromium straight into the public sewer system and out into the Columbia River. Chromium is the Erin Brockovich film's pollutant; it causes organ failure and cancer--it's extraordinarily dangerous stuff. We're spending millions of dollars as a state to monitor these companies. So we caught them 61 times over 3 years. There was no criminal case, there was no injunction that we sought, a court order to stop them. Instead they got an administrative fine of about $150 per violation, that was the average. That's less than you would get if you run a red light, and for me that's unacceptable. So my goal is to try to change the way we do environmental enforcement. One thing we need to do is push for more fines and bigger fines. We need to be more eager and willing to go into court to get court orders to stop ongoing violations. The biggest thing I think we need to do is use the criminal laws more effectively. Oregon put criminal laws on the books in the 1990s making it a crime to, for instance, dump toxic material intentionally. And those just aren't used very often. Part of the problem is that the Department of Environmental Quality has to take these cases directly to the county district attorneys, and they lack the environmental expertise, many of them are incredibly overburdened by their case loads, and so those cases aren't a priority. To fix that we're going to add an an environmental crimes prosecutor--at least one, maybe two--to the Department of Justice in the Criminal Justice section. And that will give the DEQ one-stop shopping they'll be able to go straight to a prosecutor they work all the time with, and I think that will literally allow us double or triple the number of criminal environmental cases we do as a state. And that I think will send a huge message to polluters: that they have to comply with the law and if they don't they'll be held accountable. Do you know about how much a typical prosecutor's salary and benefits would end up costing the state on an ongoing basis, at that level? It depends a little bit on who we hire and what their experience level is. The reality is that I don't think we'll need bew resources for this. There's almost 290 legal positions at the DOJ. Often people say, "Oh, it'd be nice to do something but we don't have the resources." The reality is in every government operation there's at least 2 or 3% of flexibility when you walk in the door. Three percent here would be almost nine legal positions, so I'm convinced we can find the resources to get that position deployed. So you don't anticipate a major call for significant investment in DOJ, in order to effect some of those changes? Not to achieve that.

  • (Show?)

    is the blockquote function no longer working??

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    So again, unless there's jail time, how is this substantively different that expanding and broadening the fines? I don't know if DEQ has the power to shut a business down--but I don't suppose they'd have more power to do it than the AG. DEQ would be administrative. AG would be through the courts.

    I'm sincerely not against a discussion of giving Kroger what he needs to be effective. The problem I'm having is seeing how these things can't be handled by the infrastructure already in place at DEQ (and BOLI) by restoring their funding and giving them what they need.

    It's not a question of funding, it's a question of authority. Administrative enforcement has been a bust. Our state has been badly polluted, without anyone being held truly accountable.

    Honestly, you don't see the difference between a $150 fine, and an injunction closing your business until you comply??

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    It's not a question of funding, it's a question of authority. Administrative enforcement has been a bust. Our state has been badly polluted, without anyone being held truly accountable.

    I don't see that administrative enforcement has been a bust. Nobody has presented a compelling case to me that this is what's actually going on. And what is "truly accountable"? Ginormous fines? Jail time? And frankly, it IS a question of funding. If the budget for the organizations tasked with enforcement have been consistently and constantly slashed, then it's no great wonder that they're not as effective as they should be.

    Honestly, you don't see the difference between a $150 fine, and an injunction closing your business until you comply??

    First of all, underplaying the amount of the fines that DEQ hands out isn't helpful in bringing me along. I know for a fact that they're much higher than that after following the fines leveled at Smith Frozen Foods.

    http://www.blueoregon.com/2008/09/smith-frozen-fo.html

    In terms of shutting down a business until compliance, I am still unable to understand why this can't be done through the administrative process if power is granted under statute.

    The disconnect for me here is the use of the courts. They're notoriously slow (look how long its taken to handle business on Sizemore)and expensive/labor intensive.

    Especially given that enforcement infrastructure and authority is already given to DEQ, I'm struggling to understand the net benefit. Perhaps someone from Kroger's office can stop by and clear it up.

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