PUBLIC SESSION
MEETING CONVENED
Committee Chair and Commission Vice Chair R. Marc Kantrowitz called the meeting to order at 10:00 a.m. Also in attendance were Committee member and Commission Chair Maria J. Krokidas and Committee member and Commission Executive Director David A. Wilson. Committee Chair Kantrowitz, Chair Krokidas, and Mr. Wilson participated remotely.
REMOTE PARTICIPATION
Committee Chair Kantrowitz announced that the meeting would take place remotely pursuant to Governor Baker’s Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20, dated March 12, 2020. He stated that members of the public had been invited to watch and listen to the public session via Zoom Webinar. Committee Chair Kantrowitz noted that all votes at the meeting would be taken by roll call.
DISCUSSION
Pro Bono Counsel/Mediation Policy
Committee Chair Kantrowitz requested that the Commission discuss how mediation could be conducted before creating a new policy to offer it to parties as part of Commission adjudicatory proceedings. Chair Krokidas said that mediation could be mutually beneficial for the parties by avoiding lengthy adjudicatory proceedings and resolving cases more promptly.
Commissioner Hackshaw explained that mediation is a voluntary process, so cases are resolved by mediation only if both parties agree to it. For example, the U.S. Equal Employment Opportunity Commission has a staff of trained mediators to assist the parties to reach a resolution if they agree to participate in mediation. He said that the Commission should consider the role that the mediator should play to encourage and facilitate resolving a case. Commissioner Hackshaw also asked whether respondents could be represented by an attorney during mediation. He stated that all communications in mediation are strictly confidential, and any statements made in mediation cannot be disclosed or admitted into evidence in court. Commissioner Hackshaw said that the Commission would need to obtain informed consent from the parties to ensure that they have full knowledge about the risks and benefits of mediation.
Mr. Wilson stated that while mediation can be very effective in resolving private disputes, it may not be appropriate for a law enforcement agency like the Commission. He noted that the Commission must investigate and prosecute alleged violations of law rather than to reconcile private interests. Mr. Wilson noted that the Commission has successfully negotiated disposition agreements in most cases, and the complaint backlog has been steadily decreasing.
Enforcement Division Chief Monica Brookman noted that the Commission only enters into a disposition agreement when there is an admission of a violation of the conflict of interest law. Ms. Brookman stated that when the Enforcement Division files an Order to Show Cause, it is generally only when a respondent will not admit to the findings of fact and conclusions of law and instead prefers to have their day in court. When a respondent agrees to admit to the violation, however, the current Enforcement Division staff has always been successful in negotiating a resolution without a mediator.
Chair Krokidas asked whether a mediator could assist the Enforcement Division in reaching agreement with respondents on findings of fact. Ms. Brookman explained that the Commission can recommend the termination of a preliminary inquiry if it determines that there is no reasonable cause based on the information presented in the Enforcement Division’s PI Report and subject’s 3D submission. When the Commission votes to authorize adjudicatory proceedings after the preliminary inquiry, it means that the Commission has found reasonable cause to believe a violation has occurred, and respondents can no longer negotiate a disposition agreement that omits that violation, unless they present evidence to the Enforcement Division that they did not show during the preliminary inquiry or in the 3D submission that demonstrates the violation did not, in fact, occur. She said that the Commission could more effectively communicate with respondents if instead of mediation they were offered pro bono counsel.
General Counsel/Legal Division Chief Eve Slattery reported that, since 2010, there have been only two to four cases per year that resulted in adjudicatory proceedings. Committee Chair Kantrowitz said that the Commission should consider offering mediation since there would be very few cases per year that may require it. Staff Counsel Candies Pruitt stated that there would be fewer disposition agreements as a result since respondents would favor mediation as a means to diminish or avoid any civil penalties.
Committee Chair Kantrowitz stated that the adjudicatory process favors the Enforcement Division. Mr. Wilson noted that respondents have the right to due process and the right to be represented by counsel in Commission adjudicatory proceedings and did not agree that the process favors the Enforcement Division. Commissioner Martinez stated that pro se respondents are at a disadvantage, especially when the costs to hire an attorney can prevent them from seeking counsel. Staff Counsel Norah Mallam said that a mediator could help the parties to jointly explore and reconcile their differences, particularly when some respondents believe they have an adversarial relationship with the Enforcement Division.
Committee Chair Kantrowitz asked whether a current commissioner could act as a mediator. Mr. Wilson stated that a commissioner acting as a mediator would have to abstain from voting on the matter as a commissioner. Mr. Wilson noted that, while a commissioner may be familiar with the conflict of interest law, they may not be experienced in mediation. The Commission would need to enlist experienced mediators. Chair Krokidas expressed concern with the prolonged duration of open matters before they are resolved. Mr. Wilson noted that the matters currently open have not been not delayed by issues resolvable through mediation. He also expressed concern that requiring mediation in every case would slow down the adjudicatory process.
Staff Counsel Amy Bressler Nee said that the mediator could help the parties to identify the issues and to assess and review the relative strengths and weaknesses of their case. Assistant General Counsel T. Michael McDonald stated that most issues with mediation could be resolved by providing pro bono counsel instead. Committee Chair Kantrowitz said that pro bono counsel should be only provided if the respondent is indigent.
Committee Chair Kantrowitz said that respondents should have an opportunity to share their considerations on whether the Commission should offer mediation. Mr. Wilson stated that the Commission could arrange a public hearing to help develop the guidelines on how mediation would be conducted. Chair Krokidas asked whether any other law enforcement agencies offer mediation. Ms. Slattery noted that the Division of Administrative Law Appeals at the Bureau of Special Education Appeals currently offers it.
Following discussion, the Commission scheduled its next meeting for May 25, 2021 at 10:00 a.m.
ADJOURN MEETING
At 11:40 a.m., on the motion of Committee Chair Kantrowitz, seconded by Chair Krokidas, the Committee voted 3-0 to adjourn.
| Committee Chair Kantrowitz | Yes |
| Committee Member Krokidas | Yes |
| Committee Member Wilson | Yes |
Respectfully submitted,
Arthur Xia
Program Coordinator