HP0862, LD 1239, item 1, An Act To Increase Efficiency in Enforcement of the Maine Human Rights Act

An Act To Increase Efficiency in Enforcement of the Maine Human Rights Act

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 5 MRSA §4566, sub-§4-A, as enacted by PL 1977, c. 648, §1, is amended to read:

4-A. Subpoena power. Pursuant to a complaint which that has been filed in accordance with section 4611 by a person who has been subject to unlawful discrimination, the commission may to issue subpoenas ; as provided in subsection 4-B, and to compel access to or production of premises, records, documents and other evidence or possible sources of evidence or the appearance of persons , provided that if there is reasonable cause to believe that those materials or the testimony of the persons are material to the complaint. The commission may not issue subpoenas except as provided in this subsection.

A. If a subpoena is issued, notice must be given to the person who is alleged to have engaged in the unlawful discrimination.

B. The person upon whom the subpoena is served may contest its validity. A judicial review of the subpoena is permissible in any Superior Court;

Sec. 2. 5 MRSA §4566, sub-§4-B, as amended by PL 1993, c. 303, §1, is repealed.

Sec. 3. 5 MRSA §4566, sub-§§4-C, 7-A and 7-B are enacted to read:

4-C. Binding determination; remedies. If both parties agree, to make a binding determination on the question of violation of this Act and impose remedies available to the court under section 4613.

A. If the commission makes a binding determination under this subsection, the complainant may not file a de novo action in court under section 4621.

B. The commission's determination is a final agency action, and either party may appeal the commission's determination pursuant to chapter 375, subchapter 7;

7-A. Sanctions for false statements, false information, violation of nondisclosure. To impose sanctions and seek penalties for perjury, false swearing, making a false statement, providing false information or violating the nondisclosure requirements. Sanctions may include dismissal or a summary finding against the violating party; rejection of any submissions by the violating party; drawing adverse inferences regarding the credibility of the violating party; or other remedies appropriate to rectify any harm done to the commission and its process by the violation;

7-B. Protect process. To establish by rule procedures to discourage abuse of the complaint and investigation process including but not limited to refusing to accept without justification more than 5 complaints from the same complainant in a 12-month period; summary disposition of frivolous or repetitous complaints; and other requirements designed to eliminate the filing of frivolous complaints;

Sec. 4. 5 MRSA §4612, sub-§1, ¶B, as amended by PL 2009, c. 235, §2, is further amended to read:

B. The commission or its delegated commissioner or investigator shall conduct such preliminary investigation as it determines necessary to determine whether there are reasonable grounds to believe that unlawful discrimination has occurred. In conducting an investigation, the commission, or its designated representative, must have access at all reasonable times to premises, records, documents, individuals and other evidence or possible sources of evidence and may examine, record and copy those materials and take and record the testimony or statements of such persons as are reasonably necessary for the furtherance of the investigation. The commission may issue subpoenas to compel access to or production of those materials or the appearance of those persons, subject to section 4566, subsections subsection 4-A and 4-B, and may serve interrogatories on a respondent to the same extent as interrogatories served in aid of a civil action in the Superior Court. The commission may administer oaths. The complaint and evidence collected during the investigation of the complaint, other than data identifying persons not parties to the complaint, is a matter of public record at the conclusion of the investigation of the complaint prior to a determination by the commission. An investigation is concluded upon issuance of a letter of dismissal or upon listing of the complaint on a published commission meeting agenda, whichever first occurs. Prior to the conclusion of an investigation, all information possessed by the commission relating to the investigation is confidential and may not be disclosed, except that the commission and its employees have discretion to disclose such information as is reasonably necessary to further the investigation. Notwithstanding any other provision of this section, the complaint and evidence collected during the investigation of the complaint may be used as evidence in any subsequent proceeding, civil or criminal. The commission must conclude an investigation under this paragraph within 2 years after the complaint is filed with the commission.

Sec. 5. 5 MRSA §4612, sub-§1, ¶C is enacted to read:

C. If at any time after the filing of the complaint the complainant files an affidavit with the commission stating that the complainant will be requesting a right-to-sue letter under subsection 6, the commission may suspend the investigation. The commission shall treat the affidavit as a request for a right-to-sue letter and shall issue the right-to-sue letter no more than 2 weeks after the end of the 180-day period required by subsection 6. The complainant may not withdraw the affidavit after it is filed.

Sec. 6. 5 MRSA §4612, sub-§1-A is enacted to read:

1-A. Binding determination; remedies. If both parties agree, the commission may make a binding determination on the question of violation of this Act and impose remedies available to the court under section 4613.

A. If the commission makes a binding determination under this subsection, the complainant may not file a de novo action in court under section 4621.

B. The commission's determination is a final agency action, and either party may appeal the commission's determination pursuant to chapter 375, subchapter 7.

Sec. 7. 5 MRSA §4612, sub-§6, as amended by PL 1995, c. 462, Pt. A, §7, is further amended to read:

6. Right to sue. If, within 180 days of a complaint being filed with the commission, the commission has not filed a civil action in the case or and has not entered into a conciliation agreement in the case, the complainant may request the commission may issue a right-to-sue letter , and, if to the complainant. This may occur either if the complainant requests a right-to-sue letter or if the commission is releasing its jurisdiction over the case. If a letter is given, the commission shall end its investigation.

Sec. 8. Technology. The Maine Human Rights Commission shall purchase a computer system that, at a minimum, meets the specifications required by existing federal contracts and facilitates electronic data management by the commission, including making case status information available electronically to parties and their attorneys.

Sec. 9. Appropriations and allocations. The following appropriations and allocations are made.

MAINE HUMAN RIGHTS COMMISSION

Human Rights Commission - Regulation 0150

Initiative: Provides funds for 2 Paralegal positions, one Consumer Outreach position and related costs.

GENERAL FUND 2017-18 2018-19

POSITIONS - LEGISLATIVE COUNT
3.000 3.000

Personal Services
$173,268 $242,363

All Other
$14,620 $7,120

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GENERAL FUND TOTAL $187,888 $249,483

SUMMARY

This bill implements several recommendations of a review panel created by the Governor to review operations of the Maine Human Rights Commission.

Under the bill, if both parties are in agreement, the commission is authorized to make binding determinations pertaining to violations of the Maine Human Rights Act. The commission is authorized to order remedies that the court is currently authorized to impose. Final decisions of the commission are appealable under the Maine Administrative Procedure Act as final agency actions.

The bill provides for the commission to suspend an investigation if a complainant files an affidavit with the commission stating that the complainant will seek a right-to-sue letter when permitted under law. Current law allows a complainant to ask for a right-to-sue letter, bypassing the commission findings, after 180 days have elapsed since the complaint was filed. Because the commission will suspend the investigation once the affidavit stating that the complainant will seek a right-to-sue letter is filed, the complainant may not withdraw the affidavit.

The bill provides for the commission to issue a right-to-sue letter to a complainant if 180 days have elapsed since the complaint was filed and the commission has not filed a civil action in the case and has not entered into a conciliation agreement in the case.

The bill corrects the format of language concerning the issuance of subpoenas.

The bill authorizes the commission to impose sanctions and seek penalties for perjury, false swearing, making a false statement, providing false information or violating the nondisclosure requirements. Sanctions may include the imposition of adverse inference, liability or other remedies.

The bill authorizes the commission to establish by rule procedures to discourage abuse of the complaint and investigation process. These procedures may include, but are not limited to, refusing to accept more than 5 complaints from the same complainant in a 12-month period and other requirements designed to eliminate the filing of frivolous complaints.

The bill provides funding for 2 new paralegal positions and one new consumer outreach position. Currently, investigators are performing intake functions; paralegal positions dedicated to intake will allow the investigators to concentrate on investigating and completing cases. The consumer outreach position will provide public information about the Maine Human Rights Act and rules, which will increase compliance. The consumer outreach position will also provide information about the operations of the commission.

The bill directs the commission to purchase a computer system to provide for electronic data management that allows parties and their attorneys to access the status of their cases electronically.

HP0862 LD 1239	Session - 128th Maine Legislature		LR 934 Item 1
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GENERAL FUND	2017-18	2018-19
POSITIONS - LEGISLATIVE COUNT	3.000	3.000
Personal Services	$173,268	$242,363
All Other	$14,620	$7,120

GENERAL FUND TOTAL	$187,888	$249,483