Audit shows agency taking cases outside its jurisdiction

Issue September/October 2016 By Peter Vickery

Just before the Fourth of July holiday the state auditor released the report of its performance audit of the Massachusetts Commission Against Discrimination (MCAD). The report covers the two year period 2012-2014 and it reveals the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency, and poor book-keeping). For example, the first phase of a complaint filed with the MCAD is the investigative stage and it is supposed to last no more than 18 months. However, the report states, "as of 2015, approximately 300 cases had spent more than three years in the investigative phase."

Three years is a long time to wait for a simple probable-cause/lack-of-probable-cause finding, but attorneys are inured to this sort of thing and most will greet the revelation of administrative tardiness with no more than a world-weary sigh. It hardly counts as news.

But the report also reveals something more serious: The MCAD routinely asserts jurisdiction where it has none. Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than occasional ineptitude.

"[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions."

This is an extraordinary finding on the part of the state auditor. Not a mere handful, or a couple of dozen, but more than 100 untimely cases over the course of just two years were shunted along through the investigative process, at no small cost to the respondents, very often small business owners with paper-thin margins. And it seems unlikely that this was an aberration. After all, there is no reason to think that suddenly, in the summer of 2012, the MCAD started accepting late-filed cases. To make matters worse, the auditors did not have to dig deep to identify the 100-plus mistakes. It was apparent from the data in the case-management system that the MCAD should not have accepted these cases in the first place.

In addition to hurting small businesses, the MCAD's investigation of complaints over which it has no jurisdiction hurts constitutional norms and the rule of law. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. It was the Legislature that established the cut-off point, and only the Legislature that can change it. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

Eventually, of course, after three or four years, a respondent charged in a late-filed complaint may well open the mail and read with relief that the MCAD has issued a finding of lack-of-probable-cause on jurisdictional grounds, meaning that the case will not go forward to public hearing. No harm, no foul? Hardly. In the intervening years, MCAD investigators will have required that party (usually the complainant's current or former employer) to devote hours responding to questions and demands for internal documents and to attending "investigative conferences" at the agency's offices.

There is a mechanism in place designed to prevent this. One of the MCAD's regulations (804 CMR 1.13) provides that timeliness is a threshold issue and that the agency must not investigate where it lacks jurisdiction. But, for whatever reason, this regulation does not prevent the MCAD from investigating cases that it should have screened out. Relying on intake staff to flag late-filed cases and expecting investigating officers to refrain from investigating them simply does not work, at least not well enough to prevent more than 100 untimely cases from slipping in the door

So how can we keep the MCAD from investigating people it has no business investigating at all? Given that the key shortcoming in current system is its implicit assumption that agency employees will reject untimely complaints of their own volition (an example, perhaps, of faith-based policymaking) any effective remedy must include some way for respondents to enforce the 300-day limitation period.

In adjudicatory settings, e.g. courtrooms across the commonwealth, the tried and trusted mechanism is the motion to dismiss. True, the MCAD regulations do already provide this mechanism (804 CMR 1.05(4)(c)). But filing the motion does not act as a brake. The investigation may steam ahead anyway, while the respondent waits for a ruling. If the investigating commissioner denies the motion, the respondent's only recourse is to the full commission, i.e., the investigating commissioner plus the other two commissioners. Anecdotal evidence indicates that reversals are rare.

A better and more just way to resolve jurisdictional disputes would be as follows: (1) If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD would have to suspend its investigation until it has adjudicated the motion; and (2) if the motion is denied, the respondent should have the right to an interlocutory appeal to the Superior Court.

Attorney Peter Vickery is a former member of the Governor's Council and the State Ballot Law Commission. His practice focuses on employment law, in particular discrimination defense.