140 Neb. Admin. Code, ch. 2, § 007

Current through September 17, 2024

Section 140-2-007 - Investigation

007.01 Generally

007.02 Process

The Commission, through its staff, investigates to ascertain the facts relating to the alleged unlawful housing practice or practices set forth in the complaint. During an investigation of a complaint, Commission staff may use subpoenas, requests for production of documents, interrogatories, depositions, and any other discovery means available in civil actions in district court. Any Commission staff member who is a notary public may administer an oath or affirmation during the investigation of a complaint. At its discretion, the Commission may conduct individual interviews, a conference, or both, to assist in its investigation and its attempts at conciliation.

Any member of the Commission staff may contact present employees of a respondent without notice to respondent or respondent's attorney unless they are officers or management employees or employees with authority to bind the respondent in a legal sense. Staff may also contact former employees without consent if the former employees are not individually represented. Any employee alleged to have committed a discriminatory act that is the subject of the complaint shall be deemed an employee with authority to bind the respondent. If a question exists about the level of employees sought to be interviewed or their representation, staff will notify respondent or respondent's attorney of the proposed interview. A respondent is entitled to have a representative present during the interview of officers, managers, employees with authority to bind the respondent, or other employees represented by respondent.

Any evidence obtained at an investigative interview without the presence of respondent which may adversely affect the respondent shall be disclosed to respondent before the completion of the investigation, and respondent shall have ten (10) days to provide the investigator with any additional evidence.

Nothing in this section should be construed to deny the respondent any right to discovery or to cross-examine or question any witness in any contested case proceeding on a charge issued by the Commission, if any, or in any judicial proceedings.

All interviews will be taped or digitally recorded by the investigator unless a written or verbal objection is made by the person to be interviewed or by one of the parties. Tapes or digital files will be disposed of after the case is dismissed in accordance with state records retention requirements.

007.03 Subpoenas

The Commission may issue a subpoena whenever necessary to compel the attendance of a witness or to require the production for examination of any books, payrolls, records, correspondence, documents, papers or other evidence in aid of its investigation of an unlawful housing practice charge. The Commission may withdraw any subpoena it determines to be no longer necessary, or may modify a subpoena by agreement with the person subpoenaed. In the event that any person fails or refuses to comply with an investigatory subpoena issued by the Commission, the Attorney General may enforce the subpoena in appropriate proceedings in the district court for the county in which the person to whom the subpoena was addressed resides, was served, or transacts business.

007.03AWitness and Mileage Fees. When a subpoena is issued at the request of the Commission, a member thereof, or a Hearing Officer in pursuance of an investigation, then the cost of such service and witness and mileage fees shall be borne by the Commission.

Such witness and mileage fees shall be the same as are paid witnesses in the District Courts of the State of Nebraska.

Neb. Rev. Stat. § 20-334(2)

007.03B Special Circumstances. The testimony or deposition of any witness who resides outside the State of Nebraska, or who, because of illness or any other reason, is unable to testify in an investigation may be taken within or without the State of Nebraska in the same manner as provided for in civil cases under the laws of the State of Nebraska. The transcript of any such testimony or deposition, when duly authenticated and filed with the Commission in any investigation, shall constitute a part of the official record of the complaint.

Neb. Rev. Stat. §§ 20-325(5), 20-334(1)

007.04 Final Investigative Report

At the end of each complaint investigation, the Commission shall prepare a final report containing:

(1) the names and dates of contact with witnesses;

(2) a summary of correspondence including dates of said correspondence from both the aggrieved party and the respondent;

(3) a summary of all pertinent records reviewed;

(4) a summary of witness statements, if applicable;

(5) interrogatories and answers to interrogatories or other discovery, if applicable. The final report may be amended by the Commission if additional evidence is later discovered.

007.05 Administrative Closure or Dismissal

The Commission may administratively close a case with or without the parties' consent when:

007.05A The statutory period for filing a complaint has expired.

007.05B An investigation cannot be completed because the complainant has failed to cooperate fully in the investigation of the complaint.

007.05B1 For purposes of this section, "failed to cooperate fully" means a repeated history of failure to return calls or respond to requests. A repeated history may serve as the basis for closure if the history is documented and the complainant has been given a written warning that such failure may result in the closure of the case. A complaint will not be closed based solely on the failure to claim certified mail or to return a notarized complaint form.

007.05C The complainant cannot be located after reasonable efforts.

007.05D The respondent cannot be located after the Commission has made its best efforts to locate said respondent.

007.05E The complainant has independently and voluntarily withdrawn the complaint.

007.05F The complainant is not an aggrieved person.

007.05G The complainant has commenced an action in any court of competent jurisdiction alleging the same causes of action.

007.05H The matter alleged is not within the jurisdiction of the Commission to enforce.

The Commission shall notify all parties of an administrative closure or dismissal by regular first-class mail, sufficient postage prepaid, specifying the reason or reasons for dismissal.

007.06 Reasonable Cause Findings

007.06A Reasonable cause determinations are to be made by the Commission within one hundred (100) days after the filing of a complaint or after the commencement of further action under section 20-332, unless it is impracticable to do so or unless the Commission has approved a conciliation agreement with respect to the complaint. If the Commission is unable to make the determination within that time, the Commission shall notify the complainant and respondent of the reasons for not doing so.

Source: Neb. Rev. Stat. § 20-333(1)(a)

007.06B The Commission shall determine, based upon the facts, whether reasonable cause exists to believe a discriminatory housing practice has occurred or is about to occur. If reasonable cause is found to exist, the Commission shall issue a charge on behalf of the aggrieved person, unless the aggrieved person has filed a civil action under state or federal law seeking relief with respect to that discriminatory practice.

Neb. Rev. Stat. § 20-333(1)(b)(i) and (d)

007.07 Options upon Reasonable Cause Determination

Upon a reasonable cause determination, a case may proceed to a court action, an administrative hearing process before the Commission, or a settlement, as provided by law.

007.07AElection to Pursue Civil Action. Any complainant, aggrieved person, or respondent may elect to pursue civil action through the courts rather than to proceed to an administrative hearing before the Commission. The election must be made not later than twenty (20) days after service has been made under section 20-333 of the Act. Election may be made by delivery, by regular mail, postage prepaid, by facsimile, or electronically by an acceptable method under Neb. Rev. Stat. § 86-702, and shall include the name of the electing person, the Commission case number, and a statement that the electing person is electing to pursue a civil action in court. The electing person shall serve a copy of the election upon all other parties by regular mail, postage prepaid.

Source:Neb. Rev. Stat. §§ 20-335, 20-325(5), 20-139

007.07BOpportunity for Hearing. If the election is not made under section 20-335 to pursue a civil action, the Commission shall provide an opportunity for a hearing on the record with respect to the charge. Hearings shall be conducted in accordance with the Rules of Practice and Procedure for Contested Cases, 144 NAC 1.

Source:Neb. Rev. Stat. §§ 20-326(1)(a), 20-335, 20-336(1), 20-333(1)(b)(i)

007.08 No Reasonable Cause

If the Commission determines that no reasonable cause exists to believe that a discriminatory practice has occurred or is about to occur, the Commission shall promptly dismiss the complaint and make public disclosure of each such dismissal.

140 Neb. Admin. Code, ch. 2, § 007