Last-Minute Compromise Saves Contentious Bill to Reauthorize Civil Rights Commission and Division

Published: May 11, 2018

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Last-Minute Compromise Saves Contentious Bill to Reauthorize Civil Rights Commission and Division

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Last-Minute Compromise Saves Contentious Bill to Reauthorize Civil Rights Commission and Division

Wednesday night, 30 minutes before the Constitutionally mandated adjournment deadline of 12 midnight of the 120-day legislative session, the House gave final approval to a compromise version of HB-1256, which sends it to Governor John Hickenlooper for his signature.

Compromise is the Art of the Possible

After months of contentious argument and one failed attempt Wednesday afternoon, lawmakers tried a second time during the evening and finally struck the compromise on HB-1256 to reauthorize the Colorado Civil Rights Commission and the Colorado Civil Rights Division (CCRD).

The bill had been a top priority for CACI’s Labor and Employment Council, and CACI’s Loren Furman, CACI Senior Vice President, State and Federal Policy, was deeply involved in the high-stakes talks, which Colorado Public Radio called it a “head-spinning set of negotiations.”

“From the very start, we have supported the continuation of the Commission and the CCRD because we believe it provides an avenue to try to resolve employment disputes instead of businesses and workers having to take on expensive litigation costs through the Courts,” said Loren.

“We saw the sunset bill as an opportunity to provide more business voices on the Commission because business owners and operators have a very strong understanding of the worker-employer relationship in the workplace and can provide expertise in those types of disputes.,” she added.

“Fortunately, we were able to find a compromise in the final five hours of the final day of the session that still protects the rights of workers while giving a stronger voice by businesses on the Commission,” Loren said.

HB-1256, however, took on a much larger, more controversial political significance during the session beyond the straight-forward issue of greater business representation on the Commission.

Below is a detailed chronological narrative of the road that HB-1256 took during the session.

HB-1256 and the Masterpiece Cake Case

The bill was at the heart of one of the most partisan, contentious issues of the session because it pitted civil rights against religious beliefs, a controversy manifested in the Masterpiece Cake case. The case has risen all the way to the U.S. Supreme Court. Masterpiece Cake is located in Lakewood.

The U.S. Supreme Court heard oral arguments about the Masterpiece Cakeshop case in early December and is expected to issue its ruling next month. The case is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Conservatives criticized the CCRD after it ruled against a Lakewood baker who refused on religious grounds to make a wedding cake for a gay couple. The Colorado Court of Appeals agreed with the CCRD ruling.

Reauthorization

The reauthorization of the Colorado Civil Rights Division and Commission was required under Colorado’s sunset law.

The CCRD’s mission statement on its Web site states:

The Colorado Civil Rights Division (CCRD) is charged with enforcing the State’s anti-discrimination laws in the areas of employment, housing and public accommodations. CCRD works to eliminate and prevent discrimination in these areas through investigation, education, mediation and enforcement.

The sunset report was released October 17, 2017 by the Colorado Office of Policy, Research and Regulatory Reform of the Colorado Department of Regulatory Affairs, which houses the Commission and the Division. The “key recommendations” of the report were:

Continue the Division and the Commission for nine years, until 2027. The Division and the Commission play an important role in ensuring everyone may benefit from the marketplace free of unfair treatment based on personal characteristics, such as age, disability, gender, race or religion, and they should be continued

Update the civil penalty amounts authorized in public accommodations cases, and authorize the Commission to assess such penalties. If a place of public accommodation violates the law, the Colorado Anti-Discrimination Act allows a court to issue a civil penalty payable to the charging party in the amount of $50 to $500. These civil penalty amounts were established in 1921, and they have not been changed since then. Today, $500 in 1921 would be equivalent to $6,914. While a $500 civil penalty may have been a substantial deterrent in 1921, it does little to deter discrimination today. Therefore, the General Assembly should allow a court or the Commission to assess a civil penalty based on the following schedule: Up to $5,000 for the first violation, up to $10,000 for the second violation and up to $25,000 for any subsequent violations.

Under current law, a governor appoints members “with the consent of the Senate” to the Commission. The criteria for Commissioners include:

Serving four-year terms.
Two members represent state and local governments;
One member represents business;
At least four of the seven members must be from a protected class, i.e., “disability, race, creed, color, sex, sexual orientation, national origin, ancestry, marital status, religion, or age;”

Introduced Version of HB-1256

HB-1256 was sponsored by Speaker Crisanta Duran (D-Denver), which signaled the importance that the House Democrats placed on a “clean reauthorization” as they called it.

Here’s the legislature’s description of the introduced bill:

Sunset Process – House Judiciary Committee. The bill implements the recommendation of the department of regulatory agencies in its sunset review of the Colorado civil rights division and the Colorado civil rights commission to continue the commission and the division and their respective functions for 9 years, through September 1, 2027.

The bill appropriates $1,642,843 to the department of regulatory agencies for the 2018-19 fiscal year for use by the civil rights division for personal services, operating expenses, hearings, and commission meeting costs.
The appropriation assumes that the division will require 27.2 FTE to implement the bill. The bill also acknowledges, for informational purposes, that the civil rights division will receive $496,489 in federal funds for the 2018-19 fiscal year.

The bill’s Fiscal Note contains more details about the introduced bill:

Here’s the legislature’s summary of the introduced bill:

Summary of Legislation

The bill continues the Colorado Civil Rights Division and the Colorado Civil Rights Commission in the Department of Regulatory Agencies (DORA) through September 1, 2027. The programs are scheduled to repeal on July 1, 2018.

Background

The Colorado Civil Rights Division in DORA enforces Colorado’s anti-discrimination laws in the areas of employment, housing, and public accommodations, and provides training to groups and individuals throughout Colorado. The division receives funding through the U.S. Equal Employment Opportunity Commission and the U.S. Department of Housing and Urban Development/Office of Fair Housing and Equal Opportunity. It formal cooperative agreements with these federal agencies avoid duplication of efforts on cases where joint jurisdiction exists.

The Colorado Civil Rights Commission is a seven-member board that develops policy and conducts hearings regarding illegal discriminatory practices. Board members may receive per diem and reimbursement costs for their work on the board, which typically costs less than $5,000 per year.

On March 21^st, the House passed the bill on a largely partisan vote of 36-to-26 with only two Republicans voting for the measure.

Joint Budget Committee

In early February, the three Republican members of the six-member Joint Budget Committee withheld their support for funding the Division and the Commission for fiscal year 2018-2019.

The Long Bill, the state’s budget, however, restored funding for the Commission and the Division for two years.

The Senate Amended Version

On April 30^th, the Senate unanimously adopted on a final, Third Reading vote of 35-to-0 an amended HB-1256.

The Senate sponsor of the bill was Senator Bob Gardner (R-Colorado Springs), chair of the Senate Judiciary Committee.

CACI supported an amendment in the Senate that gained bipartisan support on Second Reading, and it supported the amended bill passed by the Senate.

The Senate amendment would have ensured that the Colorado Civil Rights Division was reauthorized in statute while creating additional protections within the make-up of the Civil Rights Commission and a balanced appointment process of the Commission members.

The amendment would have created a nine-member Commission to include:

Five Commission appointments by the governor, and
Four Commission appointments by the General Assembly that are of the opposite party affiliation of the governor.
Commission members would include:
One small business representative with at least 5 employees,
One business representative with at least 50 employees,
One business organization representative,
Two labor organization representatives,
One local government representative, and
Three at-large members.

The amendment would have ensured that five Commission members were within the “protected class.” Finally, the amendment would have provided for review of the Commission by the Colorado State Auditor.

The Democrat House leadership, however, opposed the Senate version of the bill.

The bill’s House Sponsors, Speaker Crisanta Duran (D-Denver) and Representative Leslie Herod (D-Denver), who wanted to reauthorize the Commission and the Division without any changes, issued a statement:

“We have always advocated for a clean reauthorization of the Commission because it is fulfilling its purpose – to ensure that Coloradans’ rights are protected regardless of where they’re from, whom they love or the family they were born into. The changes added in the Senate go too far, reworking the commission dramatically. We cannot support the current changes, and hope that we can find common ground and pass a bill reauthorizing the Civil Rights Division and Commission before the end of session. Coloradans are watching.”

House Democrats and Governor Hickenlooper argued that allowing legislative leaders to appoint members to the Commission would have politicized the Commission.

First Conference Committee

The first conference committee Wednesday afternoon between the two chambers failed to reach agreement on a compromise.

The six-member conference committee was comprised of two House Democrats and one House Republican and two Senate Republicans and one Senate Democrat:

A vote on the Democrats’ version ended in a 3-to-3 tie. A tie vote meant the motion failed. The Democrats’ version, offered by Senator Kagan, included:

Allowing no more than three members from each Major political party to serve on the Commission; and
Requiring that the seventh member be unaffiliated or from a minor political party.

“We cannot compromise on the civil rights of people across the state,” the Speaker said at the conference committee meeting.

A vote on the Republicans’ version also ended in a tie and thus failed. The Republican version offered by Senator Gardner included a provision requiring a supermajority vote of 60 percent approval vote of appointees to the Commission by the Senate.

After the conference committee deadlocked, the House reconvened its Floor Session and lively debate about the bill continued.

Senator Williams told the Chamber that the Senate was “willing to make concessions” and its version was “absolutely reasonable.” He urged the House Democrats to continue with negotiations.

Assistant Minority Leader Cole Wist (R-Centennial) said that asking a governor to appoint three Republicans and three Democrats is “too political.” The Commission acts as “an appellate court,” he said, but commissioners are not required to have any legal training. He said it was “not acceptable” to have a governor appoint members from the opposite political party.

Representative Herod detailed the compromise offered by Senator Kagan in the first conference committee. She called for a “clean reauthorization” and said the House could not accept the Senate offer in the conference committee.

Speaker Duran told the Chamber that the Senate bill was a “stacked deck” and that it would lead to “unfair decisions” by the Commission. She said the support of the Senate Democrats for the bill that passed the Senate was to have the House “fix the Senate version.”

Minority Leader Patrick Neville (R-Castle Rock) said that allowing a governor to appoint all members of the Commission was “political.”

The Breakthrough

In the evening, with only a few hours remaining in the session, Senator Cooke and Representative Williams decided to agree with the three Democrats on the conference committee on the Democrats version but with the inclusion of a couple of provisions from the Republicans’ version.

Here are the elements of the compromise:

The Commission and the Division will be reauthorized for nine years.
The governor will continue to appoint members of the seven-member Commission.
The Commission will be subject to a legislative audit.
The Commission will include three members representing employee organizations.

The Commission will include:

Three members who will be Republicans;
Three members who will be Democrats;
One member who will be unaffiliated or belong to a minor political party.

Three of the members will represent the business community:

One will be the majority owner of a business employing five to 50 workers.
One will be the majority owner of a business with more than 50 employees.
One will represent a statewide business organization.

Finally, if the Senate rejects a nominee by the Governor, then the Governor cannot nominate the person again for a period of two years. This language was borrowed from SB-43, “Senate State Office Nominee Rejection Effects,” a proposal advocated by Senate President Kevin Grantham R-Canon City), which died in the House State, Veterans and Military Committee.

More Information

For more information about HB-1256, contact Loren Furman, CACI Senior Vice President, State and Federal Relations, at 303.866.9642.

For news media coverage of HB-1256 and more information, read:

“11^th hour compromise over Colo. Civil rights panel in legislature,” by Marianne Goodland, ColoradoPolitics, May 9^th.

“Colorado lawmakers vote to rescue PERA from the fiscal brink and reach deals on beer and civil rights,” by John Frank and Jesse Paul, The Denver Post, May 9^th.

“Civil rights division bill could go by the wayside in session’s final days,” by Marianne Goodland, ColoradoPolitics, May 8^th.

“Senate Unanimously Passes Bill Continuing the Colorado Civil Rights Division,” CACI Colorado Capitol Report, April 30^th.

“Democrats reject set of big GOP changes to Colorado Civil Rights Commission as battle over panel continues,” by Jesse Paul, The Denver Post, February 20^th.

“Fireworks at Colorado Capitol as Democrats rally to protect a civil rights commission the GOP says it doesn’t want to end,” by Jesse Paul, The Denver Post, February 13^th.

“GOP grasping at straws with Colorado Civil Rights Division,” editorial, The Denver Post, February 12^th.

“Why state legislature must fund Colorado Civil Rights Division,” opinion by Scott L. Levin, The Denver Post, March 12^th.

“Unprecedented demagoguery from the left threatens compromise on Civil Rights Division,” opinion by Senator Bob Gardner, The Denver Post, March 2^nd

“GOP state lawmakers vote to withhold funding for commission at center of Colorado baker case before U.S. Supreme Court,” by Jesse Paul, The Denver Post, February 8^th.

“Viewpoint: Masterpiece Cake case isn’t about cakes,” by Kim Morrison, The Denver Business Journal, December 22^nd, 2017.

“Viewpoint: Supreme Court should uphold Colorado’s legal protections for all,” by Kristin Strohm, The Denver Business Journal, December 7^th, 2017.

“Business groups help to maneuver rejection of Colorado Civil Rights Commission appointee,” by Ed Sealover, The Denver Business Journal, May 5^th, 2017

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