I_WorkplaceStudy_2018A 08/15/2018 09:04:01 AM Committee Summary

The meeting was called to order.  A quorum was present, and the agenda was distributed (Attachment A). 



Jonathan Griffin and Brian Weberg from the National Conference of State Legislatures (NCSL) presented information about legislative workplaces in other states, as a follow-up to the information Mr. Griffin had presented to the committee at the July 9 meeting.   



Mr. Griffin began the presentation and referenced handouts about selected differences in 2018 sexual harassment policies (Attachment B) and policies from other states (Attachments C to F).  He summarized policies in California, Delaware, and New Mexico that allow for an independent panel to investigate claims.  He also discussed the confidentiality of investigations and noted that most state policies use the "to the extent possible" standard, with the exception of California that allows for legislative investigatory documents to be released if claims are substantiated.  

Mr. Griffin next discussed selected procedures for investigating a member of the legislature for sexual harassmentand provided a handout to the committee (Attachment G). He explained the entities that investigate complaints (such as a special committee, outside investigator or human resources manager), punishment recommendations, and the composition of committees that impose consequences.  He answered questions from the committee about special accommodations, committee deadlocks, and independent third party investigators.  Mr. Griffin noted that Maryland is the only state that has a review committee comprised of members from both chambers.

Brian Weberg, Director of NCSL Center for Legislative Strengthening, next presented on the composition of human resources (HR) offices in state legislatures.  He stated that legislatures have been reviewing their respective HR structures in terms of location, jurisdiction, and scope.  He distributed a memo that outlines six general HR organizational approaches applied by state legislatures (Attachment H). These six types range from no official HR office or personnel to caucus or chamber-based ones to a centralized office that services all personnel.



Committee members asked questions about HR functions and jurisdiction, including non-partisan staff, aides, and other at-will, short-term employees.  The committee expressed interest in developing an HR office that could endure various administrations.   Mr. Weberg reiterated that HR should be able to stand on its own and not have a relationship to partisan politics.  



The committee discussed workplace culture and diversity, as well as other more traditional aspects of HR, such as job classifications, salary, hiring, candidate recruitment, equal pay, overtime policies, and payroll.  



Committee members discussed training, accommodations, accountability, the role of leadership,and ethics.  Further discussion ensued about the difficulties and conflicts with holding elected officials accountable.  



Mr. Weberg continued to explain the scope of HR offices in other states and provided examples of various models, including the roles of the HR administrator and victims advocate.  In response to a question about an ombudsman, he was unaware of states that have employed one for this purpose. 

Kerry White, Legislative Council staff, presented a fiscal estimate for the Office of Legislative Culture  (Attachment I) as recommended by Investigations Law Group (ILG).  Committee members asked questions about the proposed positions and expressed interest in receiving further cost estimates regarding HR personnel.  Discussion followed regarding costs for victims advocates and other support services.  

Ben FitzSimons, Legislative Human Resources Administrator, and Jerry Barry, Office of Legislative Legal Services (OLLS), facilitated a discussion about human resources department structure.  They referenced a list of questions that members received prior to the meeting (Attachment J).  Mr. Barry stated that he would compile a list of agreed upon items and draft policy recommendations for committee review at an upcoming meeting. 



Mr. Barry began the discussion by asking what HR functions should be handled by the new agency or department. The committee discussed if the office should include traditional HR functions such as personnel, pay, and benefits. They also discussed who is performing these functions now and if any changes are neeeded.  Mr. FitzSimons commented that core HR functions could be combined, but focus may need to be on the area of employee relations including employee engagement, retention, handbook revisions, responses to claims, and training.



The committee discussed training and agreed that mandatory sexual harassment training should be provided at new legislator orientation, as well as at other times during the year.  The committee discussed what should be included in the training and touched on such topics as bystander training, workplace culture, and emotional intelligence.  Varying the trainings for the different types of employees (such as aides, interns, legislators, and non-partisan staff) was also mentioned.   The committee agreed about providing more comprehensive trainings and that HR personnel should conduct them.  



The committee next talked about where the HR office should be housed, both organizationally and physically.  The committee discussed that Mr. FitzSimons is currently located in OLLS and agreed that this is a good fit in terms of organizational structure and the assumption of confidentiality.  The committee discussed the need for confidential work spaces and exploring the availability of office space within the Capitol and at 1525 Sherman Street.  



The committee returned to the discussion about HR scope and jurisdiction and recommended that the more traditional components of HR not be part of this office.  Rather, the committee suggested that the new HR office handle the invesigation of complaints and policy violations, determine remedial and protective measures, cultivate workplace respect, and conduct trainings in addition to other employee relation duties.

The committee stood in recess.

The meeting was called back to order.



Mr. FitzSimons and Mr. Barry resumed the discussion about HR department structure.  Mr. FitzSimons questioned the need for three employees, as recommended in the report and suggested that two employees might better reflect the workload.  He further suggested contracting out for a victim's advocate and various other support services.  He explained how the duties of the office could be divided, with the director or manager position faciltating the more formal complaint and resolution process while the other employee concentrates on the informal complaints, as well as education, outreach, training, and development.  Mr. FitzSimons also noted the office could take on more skills-based training such as emotional intelligence and team building. 

 

The committee discussed the work flow and the possibility of session-only hires.  The committee further discussed the benefits of having  employees of both genders in the new office or providing access to employees of both genders through contracted services.  



Mr. Barry answered questions about the new office being located within OLLS.  Mr. Barry noted that if HR office  is to stay wihtin OLLS, it would be advantageous for one of the attorneys to have employment or HR legal expertise.  

 

The chair acknowledged committee agreement about increasing the functions of the new HR office, but suggested revisiting the topic to determine staffing and other logistical concerns.  



Mr. Barry asked the committee about establishing an anonymous hotline.  The committee discussed the necessity of a hotline, anonymous complaints, duplication of services, financial concerns, and convenience.  



Mr. Barry next raised the issue of  the independent Equal Employment Opportunity (EEO) Advisory Panel to oversee investigations for complaints against members.  The committee discussed its necessity, including whether the panel would add another unecessary layer or be a neutral panel to help de-politicize the process.  

Ben FitzSimons summarized the ILG recommdations regarding the complaint and resolution process, beginning on page 130 of the report (https://leg.colorado.gov/sites/default/files/the_report_final_2.pdf).  He first discussed proposed contact persons to report a complaint and their responsibilities.  

The chair asked Megan Waples, OLLS, and June Taylor, Colorado Department of Personnel and Administration (DPA) to join Mr. Fitzsimons at the table to begin the panel discussion .

The committee was called back to order. 



Mr. Barry and Mr. FitzSimons facilitated the conversation about the complaint and resolution process.  They referenced a list of questions that were distributed to committee members prior to the meeting (Attachment N).  Mr. Barry said that he would compile a list of the agreed upon items and draft policy recommendations for committee review at an upcoming meeting. 

The committee discussed contact persons who should receive initial complaints.  Committee members raised concerns that ILG recommended too many people for this purpose and agreed that an HR employee or designee should be the initial contacts, taking into consideration the availability of both genders.    



The committee next addressed the informal complaint process.  Members agreed there should be an opportunity to file one with HR, but did not identify specific details about the informal resolution process.



In response to questions raised by Mr. FitzSimons, the committee discussed confidentiality and the importance of deferring to the complainant, except in situations where community safety is at stake.



The committee also discussed timelines for investigations and agreed that a proposed policy should include a target of 30 days to complete most investigations, but allow for flexibility depending on the nature and complexity of the complaint.  



The committee discussed the formal complaint process and the point at which a complaint should be made public. They further conversed about retaliation, and the importance of creating a culture of confidence.  Investigative final reports were also discussed, and it was suggested that final reports be presented in a more reader-friendly format.  



Mr. Barry asked the committee about including written notifications to the complainant and respondent in a proposed policy.  The committee agreed that written notification should be made available and delivered in-person in a confidential setting.  The committee also agreed that the written notification should also reference retaliation policies and timeline expectations.  



The committee next discussed remedial and protective measures.  Committee members agreed that these elements should be included, but that HR should be charged with establishing the specific details.  



Mr. Barry next asked whether respondents should receive a copy of the complaint.  The committee agreed that respondents should receive a notice of the allegations, but not a detailed copy of the complaint itself.  



The committee discussed anti-retaliation plans and agreed  these plans should be one required whenever a complaint procedure is initiated.  Committee discussion ensued about breaches of confidentiality and limiting speech for elected officials.  

Lastly, the committee discussed whether participation in a formal investigatory process should be mandatory.  The committee members agreed it should be a condition of employment for employees.  They did not reach consensus about third parties, such as registered lobbyists, especially when they are named as a respondent.  

 

Mr. FitzSimons continued to explain the proposed reporting process, including the role of the ombudsperson and EEO officer.  He next summarized the informal and formal complaint process as outlined in the report, beginning on page 132.  Committee members discussed the importance of giving deference to the complainant in terms of pursuing an informal or formal complaint, except in cases of community safety. They also discussed confidentiality in each circumstance and the importance of ensuring that the complainant understands the process.  



Mr. FitzSimons presented a flow chart from the ILG report (Attachment K) regarding how to file a complaint.  



The committee raised questions about the determination of a complaint.  Ms. Taylor responded that the HR administrator should have the expertise to ask initial questions and discern whether to proceed with an investigation.  



Mr. FitzSimons continued to review the ILG recommendations regarding the the formal resolution process, beginning on page 132.   The committee discussed mandatory participation for elected officials and protections for aides, lobbyists, and the media.



Mr. FitzSimons explained the proposed resolution process for complaints against non-legislators, legislators, and employees and referenced visual flow charts from the ILG report  (Attachment L and M).  He emphasized that the ILG recommends to manage complaints in a similar fashion, with the exception of an EEO Advisory Panel for complaints involving a legislator.



The committee further discussed how complaints are handled in the private sector and other state agencies. They deliberated about the challenges that may arise in a workplace that includes elected officials.



Ms. Waples presented on Colorado Open Records Act (CORA) and its application to workplace harassment investigations.  She began her presentation by explaining that CORA addresses the right of the public to have access to public records maintained by state and local governments, but it does not cover how records are created, managed, and retained within an agency.  She further explained that CORA does not apply to public records after they have been released.  Specific to records of sexual harassment claims,  Ms. Waples noted that they are to remain confidential whether or not they are part of a personnel file unless disclosure is required by law, with exceptions.  Ms. Waples next addressed the ILG recommendations and CORA and which ones may require statutory changes.



The committee discussed CORA's application to elected officials and personnel files, as well as to annual reports showing complaint and resolution statistics.  



Ms. Taylor explained how complaints are handled at DPA.  She also talked about striking a balance between meaningful investigations and transparency.  In response to a question raised earlier about third-party vendors, Ms. Taylor explained that if a complaint is filed against one, in most cases it is brought to the attention of the vendor.  In turn, if a  vendor complains about a state employee, the state investigates the complaint.  She further discussed the need to have both a policy and a process in place around managing individual conflicts for all types of situations.  She also referenced having a code of conduct to set a standard.    



The committee stood in recess.