State auditor: Colorado civil rights enforcers lack transparency and accountability

Scathing 57-page report released today

Colorado's Civil Rights Division and Commission are best known for the recent controversy involving Lakewood baker Jack Phillips, who refused to bake a cake for a gay couple. That controversy helped inspire an outside review by the state auditor of the division and commission. That review, the findings of which were published on Sept. 18, 2019, identified major problems. (Photo by Alex Burness)

The Colorado Civil Rights Division and Civil Rights Commission face a crisis of transparency, accountability and timeliness, the state auditor wrote in a damning review published Wednesday.

The division is charged with enforcing anti-discrimination laws and investigates complaints of discrimination in employment, housing, and business filed by people belonging to protected classes, which are defined by age, race, color, disability, marital status, national origin/ancestry, religion, sex, gender and sexual orientation. 

The commission, a seven-member body of gubernatorial appointees — three Democrats, one Republican and three unaffiliated — advises the governor, conducts hearings and rules in situations in which someone appeals a dismissed complaint or a finding of the division’s investigators.

These bodies are best known for their controversial handling of a complaint levied against the Lakewood baker Jack Phillips, who, in a case that wound up at the U.S. Supreme Court, famously refused to bake a cake for gay couple. The court found identified problems with the commission’s review of the Phillips case.

Writing for the court’s 7-2 majority, the retired Justice Anthony Kennedy wrote, “The neutral and respectful consideration to which Phillips was entitled was compromised here. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

The vast majority of civil rights complaints that the state receives  — 1,399 of 1,929 in 2019 — concern employment. Less than 10% of complaints since 2015 concerned “public accommodations” like Phillips’s bakery.

The report by the office of the state auditor, Dianne Ray, was ordered by lawmakers last year while the bakery case was still pending at the Supreme Court. That case provoked major concerns from Republicans about the duty and makeup of the Civil Rights Commission.

The findings in the 57-page report include:

  • The Colorado Civil Rights Division is required by state statute to investigate complaints within 270 days, but investigators in reviewed sample cases missed deadlines by about three months, on average, the report found. 
  • The report stated: “The Division could not provide evidence that staff were actively investigating complaints for time spans ranging from 3 to 10 months for nine of a sample of 25 complaints.”
  • Investigators aren’t allowed by state statute to request time extensions, yet they did so in 58 of 66 reviewed sample cases, the auditor found.
  • Comprehensive information about complaint investigations is inaccessible, the auditor found. Information concerning the division’s “decision-making, achievement of objectives (and) external reporting” was not available in any aggregated manner, the report stated.

The auditor’s report also noted that key aspects of the commission’s work are hard to evaluate because of the level of secrecy baked into the review process.

“The Commission does not operate in a manner that allows for transparency or accountability. It could not provide evidence in meeting minutes or audio recordings that it discussed the cases, applied rules and policies to the reviews,” the report read.

The report offered a series of recommendations. For one, it stated, the division should establish timeliness standards for investigators, as well as standards for better tracking investigators’ work. The auditor also recommended the commission should vote on complaints during open meetings, as it is required to do by statute.

Jill Sarmo, the public information officer for the Colorado Department of Regulatory Agencies — of which the Civil Rights Division and Commission are members — had no comment when reached by phone Wednesday afternoon, but said she’d release a statement later in the day. This story will be updated once that statement is provided.

Editor’s note: This story has been updated to reflect that former U.S. Supreme Court Justice Anthony Kennedy retired last year and is still alive.

3 COMMENTS

  1. The article refers to “the late Justice Anthony Kennedy” but he retired in 2018 and is very much alive today.

    It’s absolutely wrong for any government agency to become an advocacy group, and subvert due process to further their political agenda. Colorado civil rights apparatchiks should be fired, and I don’t think there’s a good reason to hire replacements.

  2. I think there’s a common misconception that Jack The Bigot Baker somehow overturned Obergefell and was thus found not guilty of being a bigot.

    Not so much. They instead found the knuckleheads on this commission didn’t stay intent agnostic, which is how The Bigot Baker got off on the technicality, while not changing The Precedent.

    Jack did an unwitting service to the state of Colorado actually. He has taught this commission that they must remain unconcerned with the “reasons” for the discrimination and instead focus only on the discriminating behavior…tantrums aside.

    In other words, it’s still very much illegal to do what Jack did, but next time we need a commission that doesn’t concern itself so much with the rantings of Jack’s bigoted imaginary friend.

    If these folks, regardless of political affiliation, are unable or unwilling to do that, then they should unburden themselves of the position.

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