A. After a complaint has been pre-screened,
notarized, filed, and assigned a case number, a Commission investigator will
conduct such preliminary and impartial investigation as is necessary. An
investigation may involve meetings, conferences, and interviews with the
complainant, the respondent, and any other persons whose statement may provide
a source of evidence, but is not required to involve any particular
investigative method. The investigator may record, by mechanical, electronic or
other means, all statements by all persons involved. If the investigator calls
for a meeting or conference, the parties shall be given reasonable advanced
notice.
B. Any submission made by a
party (or their attorney/representative) to the Commission must also be
provided to all other parties to the case (or to their
attorneys/representatives). Submissions provided by a party to another party
shall be kept confidential during the course of the investigation, pursuant to
section G(2), below. The parties should attempt to agree on a method for
exchanging documents; a party making an electronic submission to the Commission
must confirm whether the other parties are able to receive electronic
submissions, and must send a physical copy to any party unable to do so. All
submissions to the Commission shall contain a statement affirming that the
submission was sent simultaneously to all other parties, and identifying the
means of production to each of them.
C. The Commission's investigator shall have
access at all reasonable times to 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 investigator shall maintain a written record of all interviews. The
parties shall have the right to review the interview record, but the timing of
such review shall be subject to the investigator's discretion.
D. Any party, witness, or attorney who makes
an audio and/or visual recording of any portion of the Commission's
investigation shall not do so without first notifying the Commission's
investigator. If such a recording is made, the person making it must provide
the Commission with a copy of the entire recording, or the recording may not be
introduced into the investigation.
E. 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 possessing them shows cause to the Commission's representative 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. In the
alternative, or in the event that the party still fails to provide the
requested information after it is subpoenaed, the investigator may draw an
adverse inference against the party which refuses to produce requested
information.
Any information submitted to the Commission after the final
deadline for submissions, as set by the investigator, shall be considered by
the investigator only to the extent that it appears to the investigator that
the late-submitted information could change the investigator's recommended
finding(s) or it appears to Commission Counsel that the late-submitted
information changes the legal sufficiency of the report.
F.
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 the testimony or documents 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 such 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.
G.
Confidentiality
(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. An
attorney will not be provided with information regarding an investigation prior
to its conclusion unless the attorney (or the attorney's law firm) has entered
an appearance on behalf of a party to the complaint.
(2) The parties to the complaint shall be
required, as a condition of the investigation, to agree to maintain the
confidentiality of all information that they learn through the Commission's
investigatory process during the pendency of the investigation, including
information learned through documents produced directly by another party when
those documents are produced as part of the Commission's process. The willful
failure by a party to comply with the requirement of confidentiality may result
in sanctions, including, but not limited to, adverse inferences being drawn,
the Commission's refusal to provide further information in the record to the
party or limiting the conditions on which information may be provided to them,
and/or dismissal of the complaint.
(3) The complaint and any evidence collected
during the investigation that is a "public record" as defined by 1 M.R.S.
§402, other than data identifying persons who are not parties, shall
become available to the public for review and inspection, upon written request,
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.
(4) The following documents are considered
confidential, and shall not be disclosed except to the parties to a complaint,
the Commission and its federal partner agencies, or in a subsequent legal
action, civil or criminal. They are not considered "public records", and shall
not become a "matter of public record" for the purposes of disclosure to the
public under this section or Title 1, section 401
et seq.:
i. Medical, counseling, psychiatric, and
other confidential health records;
ii. Social security numbers;
iii. Evidence of conduct or statements made
in compromise settlement negotiations, offers of settlement, and final
agreements made prior to the conclusion of the investigative process;
iv. Names of minor children;
v. Any information the Commission is required
to be keep confidential pursuant to worksharing agreements with federal partner
agencies such as the Equal Employment Opportunity Commission or Department of
Housing and Urban Development;
vi.
Criminal history record information that is not otherwise made public by
law;
vii. Personnel records and
personal information that has been made confidential by law;
viii. Notes made by the investigator for
their private use in assessing evidence gathered during an investigation;
and
ix. Any other records that are
not public records in accordance with Title 1, section 402.
(5) The Commission may direct that
confidential information be redacted from records and documents before a party
provides those records and documents to the Commission. Alternately, if
confidential information is provided to the Commission, and the Commission
requires that information be redacted, the Commission may direct the producing
party to provide the information in a redacted format.
H. 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 to
the complainant and the respondent. The Investigator's Report shall be approved
for legal sufficiency by the Commission Counsel or their designee before it is
issued; any addendum to the Investigator's Report required by a federal partner
of the Commission may be considered confidential pursuant to 2.05(G). 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. With respect to complaints alleging unlawful housing
discrimination, unless it is impracticable to do so, the Commission will issue
an Investigator's Report within 100 days of the filing of the complaint. If the
Commission is unable to do so, it will notify the complainant and respondent by
mail of the reasons for the delay.
I. Upon receipt of the Investigator's Report
described in 2.05(H), a party shall have an opportunity to make a written
submission to the Commission setting forth specific items of disagreement with
the report and/or recommendations. The written submission shall be filed with
the Commission's office within twenty-one (21) days of issuance of the
Investigator's Report. Only specific items of disagreement that address the
following will be considered:
(1) relevant
factual errors;
(2) relevant
omissions of fact; and/or
(3)
relevant issues and questions concerning interpretation of the law.
Written submissions may not include any facts that were not
presented to the investigator during the course of the investigation. A party's
written submission shall be reviewed by the investigator, who will determine
whether it contains facts which were not previously presented. If a submission
contains such facts, they will be redacted by the Commission's staff, and only
those portions of the written submission remaining (if any) will be presented
to the Commission. If the party making the submission disagrees with any of the
redactions made, the party may, within two business days of receiving notice of
the redactions, submit a written objection identifying the items of
disagreement and providing citations/references to the record to establish that
the fact(s) was/were previously presented. Commission Counsel will review the
submissions and the record, and will make a final decision regarding the
redaction(s), which shall not be subject to further review.
If it appears to Commission Counsel that the previously
unpresented facts would change the legal sufficiency of the report, Commission
Counsel will notify the Executive Director. The Executive Director and
Commission Counsel shall confer and determine what, if any, additional
investigation must be undertaken. After any additional investigation, an
amended Investigator's Report may be issued, or the Commission may take any
other procedural action it deems appropriate in the circumstances.
Parties that agree with the Investigator's recommendation
shall not make a written submission unless necessary to correct a material
factual error in the report. Such a submission may not be provided to the
Commission.
Submissions may not be made electronically or by facsimile
except by prior written permission from the Executive Director or their
designee.
J. At
the expiration of the twenty-one (21) day period, a Commission representative
will transmit the Investigator's Report and the written matter submitted by the
complainant and/or respondent (as redacted where necessary) to the Commission.
Submissions received after the twenty-one (21) day period shall not be provided
to the Commission and shall not be considered unless an extension of time is
granted pursuant to §2.11(C).
K. The Commission must conclude its
investigation within two years after a 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.
L. With respect to complaints alleging
unlawful housing discrimination, the Commission must make final administrative
disposition of the complaint within one year of the date of receipt of the
complaint, unless it is impracticable to do so. If the Commission is unable to
do so, it shall notify the parties, in writing, of the reasons for not doing
so.
