Buffalo's HOME pushes state to hear discrimination claims

reprinted from May-June 1997 Insight, HOME's newsletter

Frustrated by unconscionable delays of as long as eight years, Housing Opportunities Made Equal has petitioned the New York State Division of Human Rights in an effort to bring nine cases to closure.

In a letter dated January 27th, HOME's executive director wrote to Paula Sawyer, director of case processing for the state human rights agency, about six cases (the oldest dating back to 1988) in which the Division had returned findings of "probable cause" but never scheduled the case for "public hearing" (trial before a state administrative law judge).

HOME also wrote about three other cases dating back to 1992 where the Division had yet to complete its investigation, and make a determination as to whether there is "probable cause" to believe that discrimination occurred.

The Human Rights Law states that the Division shall complete its investigations within 100 days of receiving a complaint and, where there is probable cause, provide legal representation for the complainant and bring the matter to public hearing within 270 days (of filing). By contrast the oldest of these cases has been awaiting public hearing nearly 3,300 days.

On February 3rd Ms. Sawyer responded that the six cases would be put on the 1997 hearing calendar and the other cases cited would be finished by the Backlog Unit by April 30th.

System that doesn't work
Administration of the Human Rights Law has been a problem which predated the Pataki administration. Neither Governor Pataki nor his predecessor allocated adequate resources to handle the volume of complaints filed each year alleging discrimination.

The Department of Housing and Urban Development has ruled that the state Human Rights Law no longer offers protections, procedures and remedies "substantially equivalent" to the federal Fair Housing Act. As a result, the state is no longer eligible to receive federal reimbursement for processing complaints of housing discrimination.

Credit where due
The Division maintains a regional office in Buffalo serving Erie, Niagara, Chautauqua and Cattaraugus Counties. Under the leadership of both Regional Director William P. Marks and his predecessor, Richard E. Clark, the small Buffalo-based staff has done a competent job of investigating the majority of complaints filed within a reasonable time frame.

However, if a case cannot be conciliated by regional staff and is recommended for public hearing, the system breaks down completely. According to HOME Executive Director Scott W. Gehl, "Respondents' attorneys have acknowledged privately they use the state's inability to do its job as a bargaining ploy in conciliation: accept this [nominal settlement] now or wait - perhaps forever.

"Given New York State's proud tradition of protection of human rights -which often predated federal law -the present system is a disgrace."

Doing the State's work
In requesting that the Division schedule these half dozen cases for public hearing, HOME has offered to do a major portion of the state's work by recruiting legal counsel for the complainants. Two members of HOME's Board of Directors, Sean M. Ryan (of Neighborhood Legal Services) and Cecile D. Mathis-Dorliae, have agreed to provide pro bono representation for HOME's clients. Unlike the federal Fair Housing Act, the state's Human Rights Law does not provide for awards of attorneys fees to prevailing parties. In 1994 HOME had written to then Commissioner Margarita Rosa about a number of similar cases. At that time the Division agreed to bring the cases to public hearing only if HOME would provide attorneys. In the wake of a decision in one of those cases (Moton and HOME v. DiGuilio, prosecuted by HOME board member John J. Phelan) the Buffalo News published an editorial entitled: "How to Undermine a Law." Citing HOME's role in bringing these cases to trial, the News concluded. "New York is flunking the test when cases stack up and it takes an outside organization to bring them to a head."

Horror stories still
The oldest of the cases now spotlighted, Meiselman and HOME v. Latona/Robbins Realty, had been filed in July of 1988 against a real estate broker who allegedly discriminated in the rental of a North Buffalo apartment. Neither the respondent nor his attorney attended the March 1997 pre-hearing conference. The matter was scheduled for public hearing on April 1st. But on March 17th, state Administrative Law Judge William E. Straub, noting the respondent's earlier nonappearance, issued an order indefinitely adjourning the hearing and, in fact, recommending that the case be dismissed for administrative convenience."

HOME's attorney, Sean M. Ryan, vigorously protested this action: "The complainants have been patiently waiting to have their claims heard in a public hearing for almost a decade. It certainly is not in the interest of the public to deny the complainants their statutory right to be heard and made whole based on the respondent's failure to appear." The Division's Office of General Counsel has yet to rule in this matter.

UPDATE
After HOME published this article, they, along with six of their clients, filed a class action lawsuit against Governor George Pataki and the New York State Division of Human Rights.

The suit was filed on behalf of all persons who have filed complaints with the Division which have not been resolved within the time frame stipulated by New York's Human Rights Law.