94-348-2 Me. Code R. § 05

Current through 2024-51, December 18, 2024

Section 348-2-05 - INVESTIGATION

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 401et 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.

94-348 C.M.R. ch. 2, § 05