Administrative Hearing & Decision Archives • WSHRC Digest

Evidence — Efforts at Conciliation Excluded

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning efforts at conciliation? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding efforts at conciliation. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: EFFORTS AT CONCILIATION EXCLUDED

WAC 162-08-292 is the relevant regulation, and it addresses efforts at conciliation as follows:

. . .

(7) Efforts at conciliation excluded. Any endeavors or negotiations for conciliation made under RCW 49.60.240 shall not be received in evidence as proof of whether or not an unfair practice was committed. RCW 49.60.250(2). If a respondent denies that the statutory step of endeavoring to eliminate the unfair practice by conference, conciliation, and persuasion took place, then evidence of whether such endeavors were made may be admitted, but the contents and details of offers, counteroffers, and discussions shall be excluded to the maximum extent possible. The commission‘s findings made pursuant to RCW 49.60.240 are prima facie evidence that the investigation, conciliation, and other statutory steps have been taken. In addition, offers of settlement or compromise and statements made in settlement or compromise negotiations, at any stage of the case, are privileged from use as proof of whether or not an unfair practice was committed. Evidence of such an offer or statement shall be excluded upon claim of the privilege by the party that made the offer or statement.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

Evidence — Stipulations Encouraged

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning stipulations? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding stipulations. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: STIPULATIONS

WAC 162-08-292 is the relevant regulation, and it addresses stipulations as follows:

. . .

(3) Stipulations encouraged. Counsel are requested to mark proposed exhibits in advance of hearing and to stipulate to the admission of all exhibits that will not be objected to.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Copies of Documents & Exhibits

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning copies of documents and exhibits? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding copies of documents and exhibits. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: COPIES OF DOCUMENTS AND EXHIBITS

WAC 162-08-292 is the relevant regulation, and it addresses copies of documents and exhibits as follows:

. . .

(4) Copies of documents and exhibits. Unless excused from doing so by the administrative law judge, a party offering a document or other exhibit in evidence must furnish copies to all other parties.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Evaluation of Evidence

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning evaluation of evidence? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding evaluation of evidence. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: EVALUATION OF EVIDENCE

WAC 162-08-292 is the relevant regulation, and it addresses evaluation of evidence as follows:

. . .

(6) Evaluation of evidence. The administrative law judge’s findings of fact shall be based exclusively on the evidence presented at the administrative hearing and on matters officially noticed, but the administrative law judge may utilize his or her experience, technical competence, and specialized knowledge in evaluating the evidence.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Identification of Exhibits

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning identification of exhibits? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding identification of exhibits. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: IDENTIFICATION OF EXHIBITS

WAC 162-08-292 is the relevant regulation, and it addresses identification of exhibits as follows:

. . .

(2) Identification of exhibits. All exhibits requested by any party shall be identified by a single series of numbers, in the order that the proposed exhibits are marked for identification. The numbers may be preceded by code letters indicating the acting party, including “C” for the commission, and “R” for a respondent. Example: The first exhibit, marked at the request of the commission, is C1. The second exhibit, if offered by a respondent, is R2, whether or not C1 was admitted.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Official Notice

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning official notice? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding official notice. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: OFFICIAL NOTICE

WAC 162-08-292 is the relevant regulation, and it addresses official notice as follows:

. . .

(5) Official notice. The administrative law judge may take notice of judicially cognizable facts, and in addition may take notice of general, technical, or scientific facts within his or her specialized knowledge. Any party may, by motion, ask the administrative law judge to take official notice of facts or material. When the administrative law judge takes official notice of any facts or material, the administrative law judge must notify the parties of what is noticed and afford them reasonable opportunity to contest the noticed facts. This may be done at any time before the administrative law judge’s order becomes final.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — General Rules on Admissibility

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning general rules on admissibility? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt evidence regulations regarding general rules on admissibility. See WAC 162-08-292, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PRACTICE & PROCEDURE REGULATIONS: GENERAL RULES ON ADMISSIBILITY

WAC 162-08-292 is the relevant regulation, and it addresses general rules on admissibility as follows:

(1) General rules on admissibility. Administrative law judges shall admit and give probative effect to evidence that is admissible in the superior courts of the state of Washington in a nonjury trial. In addition, an administrative law judge may admit and give probative effect to other evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. Administrative law judges shall give effect to the rules of privilege recognized in the courts of this state. Administrative law judges may exclude irrelevant, immaterial, and unduly repetitious evidence.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Reconsideration

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning reconsideration? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning reconsideration. See WAC 162-08-311, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

RECONSIDERATION

WAC 162-08-311 is the relevant regulation, and it addresses reconsideration rules as follows:

(1) Motion. Within ten days after being served with the final order of an administrative law judge, any party may serve and file a motion for reconsideration with the commission clerk. The motion shall identify the points that the party desires to have reconsidered and shall fully state the reasons for reconsideration. The motion shall in all other respects proceed as provided in RCW 34.05.470.

(2) Finality for appeal. When a motion for reconsideration has been filed, the order of the administrative law judge shall not be deemed final for purposes of appeal until the ruling on the motion has been served.

(3) Reconsideration not necessary for appeal. Motions for reconsideration should be made only when a party feels that the administrative law judge has overlooked or misunderstood something. It is not necessary to file a motion for reconsideration in order to appeal. RCW 34.05.470(5).

WAC 162-08-311 (emphasis added) (hyperlinks added).

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–gw

Conduct of Hearings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning conduct of hearings? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning conduct of hearings. See WAC 162-08-291, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

CONDUCT OF HEARINGS

WAC 162-08-291 is the relevant regulation, and it addresses rules concerning conduct of hearings as follows:

(1) Reference to law. Hearings shall be conducted in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW, RCW 49.60.250, and these rules.

(2) Administrative law judge presides. The administrative law judge shall preside as provided in WAC 162-08-211.

(3) Hearings shall be public. All administrative hearings shall be open to the public. Photographs and recordings of the proceedings may be made, subject to such conditions as the administrative law judge may impose to prevent interference with the orderly conduct of the hearing. Special lighting for photographic purposes may be used only if the administrative law judge has determined in advance that it will not be distracting. The administrative law judge may order news media to use one or more television cameras on a pooling basis if the number of cameras interferes with the conduct of the hearing.

(4) Record of testimony. The clerk shall determine whether the record of testimony taken at a hearing shall be made by mechanical means or by a court reporter.

(5) Copies of record. When the record has been recorded by mechanical means, rather than by a court reporter, a party ordering a copy of the record or part thereof under RCW 34.05.566 must pay the reasonable cost of transcription, as determined by the clerk, in advance of delivery of the copy. When the record is transcribed and copies of documents are made for transmittal to a reviewing court under RCW 34.05.566, the costs of transcription and copying may be charged to a nonindigent petitioner in accordance with RCW 34.05.566(3).

WAC 162-08-291 (emphasis added) (hyperlinks added).

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–gw

Findings, Conclusions, & Order

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning findings, conclusions, and orders? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning findings, conclusions, and orders. See WAC 162-08-301, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

FINDINGS, CONCLUSIONS, AND ORDER

WAC 162-08-301 is the relevant regulation, and it addresses rules concerning findings, conclusions, and orders as follows:

(1) Preliminary decision of administrative law judge. In every administrative hearing the administrative law judge shall prepare preliminary findings of fact, conclusions of law, and order in accordance with WAC 10-08-210, which shall be mailed to the parties and their counsel for comments, objections, and proposed corrections.

(2) Final decision of administrative law judge. After the expiration of thirty days from the receipt of comments upon the preliminary decision, the administrative law judge will issue a final decision which is enforceable in accordance with RCW 49.60.260.

WAC 162-08-301 (emphasis added) (hyperlinks added).

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–gw

Nature of Orders–Enforcement

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning the nature of orders–enforcement? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

NATURE OF ORDERS–ENFORCEMENT

WAC 162-08-305 is the relevant regulation, and it states that the nature of orders–enforcement is as follows:

(1) Nature of orders. Orders obtained by counsel for the commission are public reparation orders, not adjudications of private rights between respondents and persons aggrieved by the respondents’ unfair practices. When a respondent is ordered to rehire or compensate a person, the person who is the beneficiary of the order has no property right in the job, money, etc., until the person receives it.

(2) Enforcement of order. Except as may be otherwise provided in RCW 49.60.260 and WAC 162-08-288, only the commission, through its counsel, has the authority to enforce an order of an administrative law judge. RCW 49.60.260.

(3) Compromise of order. Except as may be otherwise provided for a complaint alleging an unfair practice in a real estate transaction, the commission, acting in good faith, may compromise an order of an administrative law judge, with or without the consent of the beneficiaries of the order.

WAC 162-08-305 (emphasis added) (hyperlinks added).

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–gw

Claims of Self Incrimination–Immunity

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning claims of self incrimination–immunity? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning claims of self incrimination–immunity. See WAC 162-08-294, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

CLAIMS OF SELF INCRIMINATION–IMMUNITY

WAC 162-08-294 is the relevant regulation, and it addresses claims of self incrimination–immunity as follows:

(1) How claimed. A natural person who is testifying under oath, may, instead of answering a question, decline to answer the question on the ground that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture.

(2) Procedure before compelling testimony. Before compelling testimony after the privilege against self incrimination has been invoked (and thereby exempting the witness from prosecution) the administrative law judge shall ask examining counsel and also counsel for the commission to state their positions on whether the witness should be ordered to answer. Counsel for the commission may ask that the ruling be deferred for such time as is necessary for counsel for the commission to consult with other public officers before responding. The position of counsel for the commission and other public officers shall be given due weight by the administrative law judge in deciding whether to order the witness to answer.

(3) Inference from silence after immunity acquired. If the witness declines to answer the question after acquiring exemption from prosecution, the administrative law judge may consider the silence as evidence and may draw such inferences from it as are warranted by the facts surrounding the incident.

WAC 162-08-294 (emphasis added) (hyperlinks added).

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–gw