April 12, 2012
Lawmakers propose new home for CHRO, workers' comp
By Thomas Sheffefy - Connecticut Law Tribune
Early this year, segments of the Connecticut legal community were alarmed to learn of plans by the administration of Gov. Dannel Malloy to consolidate the Commission on Human Rights and Opportunities with the Office of Protection and Advocacy, and to place the Workers' Compensation Commission within the Department of Labor.
To many, it seemed like a consolidation without any resulting efficiencies. In fact, attorneys worried that the operations of the two commissions would be greatly hindered if they were rolled into a larger entity.
The CHRO, charged with investigating and judging claims of discrimination, is a forum where rights are weighed, balanced and enforced, while the Office of Protection and Advocacy consists of loyal advocates for people with disabilities — a much different role. "It makes no more sense than advocating a merger of prosecutors and public defenders, the roles are so different," said James O'Neill, legislative liaison for the CHRO.
Last week, it became clear that the legislature, too, can play the government reorganization game. The Appropriations Committee has countered by recommending that the CHRO and Workers' Compensation Commission be placed under the umbrella of the Judicial Branch.
"CHRO will remain as an independent agency [and] will be transferred to the Judicial Branch," the March, 29 Appropriations budget states. Workers' Compensation, as well, would become a Judicial Branch agency, for budget purposes.
A key person behind the changes is Sen. Toni Harp, D-New Haven, co-chair of the Appropriations Committee for the past eight years. She said she has never before recommended moving an agency to a different branch of government for its own protection. But after hearing testimony from agency heads and lawyers opposing the reorganizations in CHRO and workers' comp, she has concluded that moving those agencies to the Judicial Branch makes sense.
Over the decades, CHRO in particular has been rendered ineffective under executive branch management, Harp maintains. It's been financially starved, had its payroll and human resource functions stripped away and has been threatened with loss of authority in some areas, such as oversight of affirmative action programs, Harp said.
Add to that the merger proposal and, Harp said, "it just appeared there wasn't a clear understanding of what this agency does."
Harp said the tight fiscal rein and attempts to carve away duties has hurt the CHRO's effectiveness. "It needs to be independent, and yet have the ability to function," Harp said. "It hasn't been able to do that well in the executive branch for decades now. It hasn't for the past five years, until about a week ago, been able to fill a vacant position."
O'Neill, the legislative liaison, said the administrations of Governors John G. Rowland and M. Jodi Rell "have done the harm to CHRO. The Malloy administration has offered to refill four investigator and one support position," the first positions refilled since 2008, he said. "That's huge, when you consider that all we've had is cut after cut after cut, under the last two administrations."
Attorney Frank Bailey, of Bridgeport's Tremont Sheldon Robinson Mahoney, heads the workers' comp section of the Connecticut Trial Lawyers Association. Last month he testified against moving the Workers' Compensation Commission to the Department of Labor, saying it would be a bad idea for oversight of the commission to be handed to those with little or no legal background.
But he would welcome the proposed move from the executive to the Judicial Branch. It would keep "all its independence, both in the way the commission's going to be run and in the fiscal end of it, so it seems to be a smart move," Bailey said.
He notes that the proposal states that "the commission shall be an autonomous body within the Judicial [Branch] for fiscal and budgetary purposes only." That, he said, would result in some of the financial efficiencies the governor wants to achieve with consolidation, and it preserves the independence of the commission and the chairman.
"Workers' Comp has worked well for so long, it didn't seem to make sense to tinker around with it," Bailey added.
The legislative Appropriations Committee had not consulted with the Judicial Branch before making its recommendation, nor did it have a stamp of approval from the governor's office. Judicial Branch spokeswoman Rhonda Stearly Hebert said of the merger proposal, "We're reviewing it, and we don't yet know what the impact will be."
Sen. Harp said that the two commissions, if moved to the Judicial Branch, would retain their current funding levels and not drain existing Judicial Branch resources. "They would be handled the same way as the public defenders," which are under the Judicial Branch but have their own budget line, Harp said.
Robert Brothers, executive director of the Commission on Human Rights and Opportunities, was plainly unhappy with the notion of merging CHRO and the Office of Protection and Advocacy. All of CHRO's "back room" functions — such as human resources — have previously been consolidated with other agencies of fewer than 100 employees. Thus, no real economies of scale were still available, Brothers told the Law Tribune.
For the past 70 years, the head of the CHRO has been selected by an independent, bipartisan, nine-member commission, eight of whom are appointed by legislative leaders of both parties and one by the governor's office. Under the consolidation proposal, said Brothers, "those nine commissioners have to make a recommendation to the governor as to who they would like to be the executive director."
However, the way the consolidation bill reads, nothing says the governor has to follow the recommendation. "One can assume that no matter what name is forwarded by the commission," said Brothers, "the governor wouldn't have any obligation to file that recommendation, which would be a totally different avenue from what we had historically."
If the head of CHRO were a direct appointee — or personal pick — of the governor, a new conflict of interest arises, Harp noted. About 10 percent of CHRO cases involve state employees, and most state workers are employed by executive branch agencies. With less independence, CHRO might lose its reputation for fairness.
Harp sees similar possible conflicts if the Workers' Compensation Commission is in the Labor Department, a cabinet-level agency. She says both commissions are better fits in the Judicial Branch, as both agencies alleviate some stress on the courts. Harp notes that Rhode Island's workers' comp commission is in its judicial branch.
"There is that nexus with judicial decisions," Harp said, "and there is a sense that, in my mind, that these entities operate functionally outside of the executive branch in many respects. CHRO and workers' comp, they are a judicial function — or at least adjudicatory."
In the next three weeks of the legislative session, Harp said, legislative leaders will negotiate with the executive Office of Management and Budget and discuss the future of the CHRO and the Workers Compensation Commission.
Harp hopes "they will be treated in a way that they can move forward and operate. Perhaps they can stay there [under the executive branch], or maybe they will agree with us that it's best, given all the conflicts that have existed over the years, for them to be in another branch."