A. Preliminary Investigation
After a complaint has been filed, pre-screened, notarized,
and assigned a case number, a Commission investigator will conduct such
preliminary and impartial investigation as is necessary. An investigation may
involve fact-finding meetings and interviews with the complainant, the
respondent, and any other persons whose statements may provide a source of
evidence. The investigator may record, by mechanical, electronic or other
means, all statements by all persons involved.
B. Commission's Right of Access
The Commission's investigator shall have access at all
reasonable times to the premises, records, documents, individuals, and other
evidence or possible sources of evidence and may examine, record, and copy such
materials and take and record the testimony or statements of such persons as
are reasonably necessary for the furtherance of the investigation. The
Commission's investigators are hereby delegated the authority to administer
oaths.
The Commission and any representative shall have access to
individual educational records, only with the permission of parents or students
of majority age, in educational institutions governed by the Family Educational
Rights and Privacy Act of 1974, the Education of All Handicapped Children Act
of 1975, and
20-A M.R.S.A.
§6001, except when a subpoena or court
order has been issued.
C.
Production of Evidence
Documents, records, files, or other possible sources of
evidence shall be produced within the time specified by a Commission
representative's written request for their production, unless the person
processing them demonstrates that production within the time specified would
impose an unjustifiable burden. Excessive delay or failure to produce the
requested materials may result in the issuance of a subpoena by the Commission
for their production.
D.
Subpoena Power
(1) Form: Subpoenas shall be
issued in the name of the Maine Human Rights Commission, shall designate the
Commission as recipient of the material or testimony specified, and shall
designate a specific time and place for the production of the documents and/or
testimony.
(2) When Available: A
subpoena may be used to compel testimony or the production of documents
whenever there is reasonable cause to believe that those materials or the
testimony of the persons are material to the complaint.
(3) Procedure: When the
Commission's
Executive Director or
Commission Counsel determines that there is reasonable
cause to believe that testimony or documents being withheld are material to
investigation of the complaint, the Executive Director or
Commission Counsel
may issue a subpoena.
The subpoena shall include: the name and address of the
respondent subject of the subpoena; if the subject of the subpoena is not an
individual, the name of the senior officer or person in charge; a brief
description of the documents requested and/or the name and title of the
person(s) whose testimony is requested; and the date, time and place such
production and/or testimony is requested.
If a subpoena is issued, notice must be given to the
complainant and the respondent.
(4) Service. Subpoenas may be served by any
person who is not a party to the proceeding and who is not less than eighteen
(18) years of age. Service shall be made by delivering a copy of the subpoena
to the person named therein and tendering to that person the fees and mileage
paid to witnesses in the Superior Court of this State.
(5) Return: The person serving the subpoena
shall make proof of service by filing the original of such subpoena and an
affidavit of acknowledgment of service with the Commission. However, failure to
make sure proof of service shall not affect the validity of such subpoena and
service.
(6) Enforcement: If any
person refuses to obey a subpoena, the Commission may apply to any justice of
the Superior Court for an order compelling compliance with the
subpoena.
(7) Opposition: Any
person served with a subpoena may oppose it by applying for judicial review in
Superior Court.
E.
Deferral to Department of Education; Joint Investigations
Upon agreement of the complainant, or by decision of the
Commission's Executive Director, and with consent of the Commissioner of
Education, the complaint may be referred to the Department of Education for an
investigation pursuant to that Department's procedures. The Commission's
Executive Director may defer further investigation and action until completion
of the investigation of the Department of Education and receipt of the
Department's report and recommendations as to appropriate action.
With the consent of the Commissioner of Education and the
Commission's Executive Director, a joint investigation may be pursued by the
Commission and the Department.
E-1.
Prior to the conclusion of an investigation, all information possessed by the
Commission relating to the investigation is confidential and may not be
disclosed, except that the Commission and its employees have discretion to
disclose such information as is reasonably necessary to further the
investigation. The complaint and evidence collected during the investigation,
other than data identifying persons who are not parties, shall become a matter
of public record upon issuance of a letter of dismissal or upon listing of the
complaint on a published Commission meeting agenda. The complaint and evidence
collected may be used as evidence in any subsequent proceeding, civil or
criminal.
F.
Investigator's Report
Upon completion of the investigation, the Commission's
investigator will make and transmit a report of the investigation, together
with recommendations concerning the disposition of the complaint (hereinafter
referred to as Investigator's Report) to the complainant and respondent. The
Investigator's Report shall be approved for legal sufficiency by the Commission
Counsel or her/his designee before it is issued. All parties to a complaint
shall be given a reasonable opportunity to review and respond to all evidence
considered by the Commission before the Investigator's Report is issued, but
the timing of any such review shall be subject to the investigator's
discretion.
The Investigator's Report on a public school or program or
private school or program approved for tuition purposes shall also be delivered
in a timely manner to the Commissioner of Education.
G. Submission of Response
Upon receipt of the Investigator's Report, the complainant
and respondent shall have an opportunity to make written submissions to the
Commission setting forth specific items of disagreement with the report and/or
recommendations. The Commissioner of Education may also make a written
submission on any report concerning public schools or programs or private
schools or programs approved for tuition purposes. Written submissions shall be
returned to the Commission's office within seventeen (17) working days of
issuance of the Investigator's Report. Written submissions must be limited to
specific items of disagreement that address the following:
(1) relevant factual errors,
(2) relevant omissions of fact,
and/or
(3) relevant issues and
questions concerning interpretation of the governing law.
H. Transmittal to
Commission
At the expiration of the seventeen (17) day period, a
Commission representative will transmit the Investigator's Report and any
written submissions to the Commission.
I. The Commission must conclude its
investigation within 2 years after the notarized complaint is filed with the
Commission. An investigation is concluded for purposes of this requirement upon
issuance of a letter of dismissal or upon listing of the complaint on a
published commission meeting agenda, whichever first occurs.
