BEFORE THE IOWA CIVIL RIGHTS COMMISSION

MAXINE FAYE BOOMGARDEN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

v.

HARDIN COUNTY VETERANS' COMMISSION BOARD and HARDIN COUNTY BOARD OF SUPERVISORS, Respondents.

CP # 07-86-14926

RULINGS ON OBJECTIONS TO EVIDENCE

1. A number of objections were made to the admissibility of either testimony or exhibits. Many of these objections were simply noted in the record because evidence which would be excluded under the rules of evidence in a jury trial may be admitted in administrative hearings. Iowa Code S 17A.14(1). Hearsay objections, for example, are noted in the record, as it is the well-established law of Iowa that hearsay evidence is admissible in administrative hearings. McConnell v. Iowa Dept. of Job Service, 327 N.W.2d 234, 236- 37 (Iowa 1982); Schmitz v. Iowa Dept. of Human Services, 461 N.W.2d 603, 606, 607 (Iowa App. 1990). When this procedure is followed, the objection, if it were found to be valid, may affect the weight given to the exhibit or testimony objected to, but the exhibit or testimony is admitted in the record and no ruling on the validity of that objection is made in the proposed decision.

2. Other testimony and exhibits were admitted subject to the objections with the understanding that the objections would be ruled upon in this decision. 161 IAC 4.2(5). This procedure is often followed when one of the objections is that the proffered evidence is irrelevant, immaterial, or unduly repetitious, all of which are grounds upon which the evidence should be excluded. See Iowa Code S 17A.14(1). Rulings are made below only with respect to those objections which were neither noted in the record nor ruled on during the course of the hearing.

Ruling on Objections to Exhibits C-28, C-28-9 and C-28-10:

3. Exhibit C-28 is the affidavit of Commission investigator Karl Schilling. Mr. Schilling's affidavit verifies that he has reviewed the tapes of his interviews with Board of Supervisors members Millie Lloyd and Robert Fuller. It also states that the transcripts of these interviews, which are Exhibits C-28-9 and C-28-10, are true and accurate transcriptions. (EX. C-28 at 6-7).

4. The Respondent objected to the admission of all three exhibits based on the statute allowing investigators to testify at hearing. (Tr. at 588). This is apparently a reference to Iowa Code S 601A.15(6)(now S 216.15(6)), which permits, but does not require, investigators to testify at hearing. Since the statute does not require investigators to testify, and certainly does not bar admission of affidavits, this objection is overruled.

5. The Respondents also objected to the admission of these exhibits on the ground of surprise, noting that Schilling was not identified as a witness in response to interrogatories requesting the identity of witnesses. However, investigator Schilling was never called as a witness by the complainant or the Commission, so Respondents cannot claim surprise on the basis of his not being listed as a witness. Furthermore, in Complainant's Answers to Interrogatories, which were filed on August 19, 1991, approximately one month prior to the hearing, the Complainant indicated it had obtained copies of the tapes of the investigator's interviews with various witnesses and had transcripts of such tapes. The Complainant also indicated in its answers that it understood that the Respondent also had copies of such tapes. Finally, the objection to surprise was made on the third day of the hearing, which took place on October 28th, approximately 5 1/2 weeks after the 2nd day of trial. These transcripts had been used for impeachment purposes earlier in the trial. (Tr. at 197-98, 453-54). This constituted further notice of these exhibits, in addition to the answers to interrogatories, prior to the time of the objection. This objection is overruled.

Ruling on Relevancy and Foundation Objections to Questions Concerning Hardin County Disasters:

6. The complainant and the Commission objected to a series of questions to the complainant on how she would react to two hypothetical disasters, a fire in the Eldora business district and a tornado in New Providence, on the grounds of relevancy. (Tr. at 91, 93). The question concerning a hypothetical fire in the Eldora was also objected to for lack of foundation, i.e. it had not been shown that the Civil Defense Director position dealt with fires. (Tr. at 91). The Respondents asserted such questions were relevant as David Roelfs had responsibility for such situations after his hire, and they would show the relative qualifications of him and the complainant with respect to the civil defense area. (Tr. at 93). The Respondents also indicated that they would establish this foundation by connecting it up with later evidence. (Tr. at 91).

7. The evidence showed, however, that no such hypothetical questions concerning disasters were ever asked Complainant Boomgarden, preferred candidate David Roelfs, or any other candidate during their interviews with the Veterans Affairs Commission or the Board of Supervisors. (Tr. at 129, 216, 237, 320, 379, 380, 383, 455, 492, D34). One or both of these scenarios were based on actual events, such as a tornado in New Providence, that occurred after David Roelfs was hired for the position. (Tr. at 92, 93, 406, 408-09).

8. It would have been impossible for the Veterans Affairs Commission or the Board of Supervisors in 1986 to have asked the complainant or other candidates about a specific disaster which hadn't yet happened or to have compared the answers of Complainant Boomgarden with the unknown post-hire future performance of David Roelfs with respect to a disaster. Under these facts, these questions do not tend "to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the evidence." Iowa R. Evid. 401 (Definition of "relevant evidence"). The relevancy objection is sustained.

9. The foundational objection is also sustained, as the record later showed that the Coordinator of Emergency Management (Civil Defense Director) had no responsibilities with respect to any fires other than chemical ones. (Tr. at 410). The question propounded to the Complainant did not indicate the origin of the fire. (Tr. at 91). The questions and answers objected to are stricken from the record.

Ruling on Relevancy Objection to Complainant Boomgarden Testifying to Ruth Donner's Opinion As to What Millie Lloyd Would Do With Respect to the Veterans Affairs Director's Position:

10. After Complainant Boomgarden testified that she had conversations with Ruth Donner, a deputy county auditor, with respect to her application, she was asked what the content of those conversations was. This was objected to by Respondents on grounds that the conversations' content lacked relevancy. (Tr. at 26, 594). The examiner was allowed to continue the examination until it could be more clearly established whether or not the subject matter was relevant. (Tr. at 27). 11. When the Complainant's testimony indicated that she would be offering the opinion of Ruth Donner as to what supervisor Millie Lloyd would do with respect to the position, the objection was renewed. (Tr. at 72). Ultimately, the complainant testified that Donner told her that she had known Millie Lloyd a long time and Lloyd would never put a woman in the Veterans Affairs Director position. (Tr. at 27-28).

12. This testimony is relevant because it informs the finder of fact of one of the reasons why Complainant Boomgarden believed she was subjected to sex discrimination. (R. EX. # 10; Tr. at 137). Therefore, the objection is overruled.

13. This testimony, however, is not entitled to any weight in determining whether sex discrimination actually occurred for two reasons:

(1) the complainant's testimony provided no evidence of any rationale for Donner's asserted belief; and (2) Donner testified that, while it was possible she did say this, she did not recall making such a statement and did not think she would make such a statement as Lloyd had always been fair with women and has appointed women on several occasions. (Tr. at 28, 594. 596. 599-600). Also, Donner had not talked with any Board of Supervisor's members as to whom they preferred for the position. (Tr. at 602).

Ruling on Relevancy Objection to Taking of Official Notice of Section 80.3(4) of Chapter 641 of the Iowa Administrative Code:

14. Respondents requested that judicial notice be taken of administrative rule 641 IAC 80.3(4). The provisions of this rule are set forth in a document labeled Respondent's Exhibit 3. This exhibit was not admitted in the record, but was retained to provide the content of the regulation. The Commission has the authority to take official notice of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Iowa Code § 17A.14(4) (1991). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980).

15. The Commission and the complainant objected that the regulation was not relevant to this inquiry and that notice should not, therefore, be taken of the regulation. (Tr. at 78, 79). The Administrative Law Judge asked the parties to address the proposal to take judicial notice of this regulation on brief. (Tr. at 79). No party did so. The Respondents' brief did suggest in passing that this section supported the proposition that "Complainant was not qualified to serve clients directly as a caseworker." (Respondents' Brief at 8). This regulation, which set forth changes in qualifications for the homemaker-health aide position in the Homemaker Health Aide Service (HHAS), is relevant only because Complainant Boomgarden was no longer permitted to perform a variety of duties for the HHAS, which she had previously performed successfully, at some time after it was published on December 18, 1985. (Tr. at 83-85, 130- 31, 154-56, 250-51). The effective date of the regulations was January 22, 1986. Iowa Admin. Bull. 12/18/85 (ARC 6217). Official notice is, therefore, taken of this regulation.

Ruling on Relevancy and Materiality Objection to Question to Complainant Boomgarden Concerning How Former Supervisor Jerry Pence Felt About Supervisor Robert Fuller:

16. During Respondents' counsel's cross-examination of Complainant Boomgarden, he asked if she had any idea how Bob Fuller, a member of the Board of Supervisors in 1986 who participated in making the hiring decision in question, and Jerry Pence, a former supervisor, felt about each other. This was objected to by Complainant's counsel as being irrelevant and immaterial. (Tr. at 106, 108-109). Complainant's answer was that she did not have any idea how Pence and Fuller felt about each other. (Tr. at 108). This question was apparently an attempt by Respondents to determine whether Boomgarden had some knowledge of political conflicts between these two and to ascertain if such conflict played a role in the decision to hire David Roelfs instead of her. (Tr. at 109). The objections are overruled.

Ruling on Relevancy Objection to Question Propounded to Jerry Pence Concerning Whether It Would Be Reasonable for Bob Fuller and Millie Lloyd to Assume That Pence's Participation in the Selection Process Was Politically Motivated:

17. After Complainant objected to Respondent's inquiry of Jerry Pence, as to whether it would be reasonable for Bob Fuller and Millie Lloyd to conclude that his (Pence's) involvement in the selection process was politically motivated, as irrelevant, Respondent modified the inquiry to ask if, based on Pence's observation of their behavior, he would be surprised if they would take that view. (Tr. at 232). Mr. Pence replied that it would not surprise him. (Tr. at 232). In light of the modification, the objection is overruled.

Ruling on Relevancy Objection to Exhibits R-6A Through R-6J:

18. Exhibits R-6A through R-6J are photographs of David Roelfs' office. They are offered to demonstrate how the office was decorated with various items supportive of the military after Roelfs was hired for the position. (Tr. at 415). Respondents suggest that these items are relevant because they send a message to clients that "a veteran works here." (Tr. at 417). There are three problems with the rationale that this message somehow makes these photographs relevant. First, all of these items were placed in this office after Roelfs was hired. (Tr. at 415). Second, there is absolutely no evidence in the record to the effect that the manner in which the office would be decorated by either a veteran or nonveteran or, to be specific, by Roelfs or Boomgarden, had anything to do with the hiring process here. There is no evidence that either the Board of Supervisors or the Veterans Affairs Commission in any way took the manner in which the office would be decorated or what items would be displayed there or what message those items might send into account in making their recommendation and hiring decisions. Third, while the items displayed demonstrate a pro-military message, they do not necessarily state "a veteran works here" because many, if not all, of these items can be obtained by nonveterans, including United States flags, baseball caps with flags stating "these colors don't run," "Fly Navy" and other bumper stickers, "We Support Our Armed Forces" posters, a red, white and blue ribbon, military insignia, and campaign ribbons. (Tr. at 414-15). Those items, such as certain insignia and the aircraft carrier photo, which might indicate a more personal relationship with the military are not shown detail to allow one to ascertain if a client viewing them could readily determine if the items are specifically related to Roelfs or are items which may have come from other veterans or other sources.

19. Proof of the placement of these items in the office after Roelfs' hire does not tend "to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the evidence." Iowa R. Evid. 401 (Definition of "relevant evidence"). The objections are sustained. Respondents' exhibits R-6A through R-6J are not admitted into the record.