Cal. Code Regs. Tit. 2, § 10049 - Julie Waltz First Amendment Policy

(a) When a complainant seeks to file a housing discrimination complaint against a person who is not an owner within the meaning of section 12927(e) of the Government Code, the department shall screen the complaint at intake to determine whether it implicates protected First Amendment activity as described by the United States Court of Appeals for the Ninth Circuit in White v. Lee (9th Cir. 2000) 227 F.3d 1214 (White).

(b) Protected First Amendment activities described in White include, but are not limited to, writing and distributing signs, flyers, and newspapers or articles; engaging in expressive associational activities that advocate discriminatory policies; and petitioning the government for redress of grievances (e.g., filing of a lawsuit that is not frivolous or participating in the political or legislative process).

(c) Complaints that have been deemed at intake to meet the criteria set forth in paragraphs (a) and (b) above shall be referred to the chief counsel of the department's legal division, or a designated associate or assistant chief counsel, to confirm whether the criteria have been met and, if so, determine whether a complaint should be taken under the department's First Amendment policy.

(d) If the chief counsel or a designated associate or assistant chief counsel accepts the complaint for investigation, then the chief counsel or designated associate or assistant chief counsel shall draft the complaint. The complaint shall only include the specific allegations that are appropriately subject to the department's investigation under this policy.

(e) When a complaint is accepted for investigation under the department's First Amendment policy, legal advice shall be provided by the chief counsel of the department's legal division, or a designated associate or assistant chief counsel, regarding the proper scope of the department's investigation. Such legal advice shall include the following three topics:

(1) Scope of Investigation: The investigation shall be limited in a manner that would permit the department to properly investigate the complaint, but not violate the respondent's First Amendment rights. The chief counsel or chief counsel's designated associate or assistant chief counsel shall provide guidance to department staff on how the specific allegations in the complaint should be investigated. The investigation shall not be overbroad, but instead shall focus on the specific allegations that were approved for an investigation under this policy. In providing this guidance, the chief counsel or a designated associate or assistant chief counsel shall be mindful that activities such as distributing flyers and newsletters, lobbying public officials, and petitioning the government are protected by the First Amendment. On the other hand, acts of violence, threats, or intimidation may constitute unlawful housing discrimination that is not protected by the First Amendment. The investigation shall focus on the specific allegations that might prove a FEHA violation.

(2) Communications: The chief counsel or the chief counsel's designated associate or assistant chief counsel shall advise department staff that when communicating with a respondent, the media, or member of the public regarding an investigation under this policy, department representatives shall make clear that protected First Amendment activities do not, by themselves, constitute a violation of the FEHA.

(3) Length of Investigation: The chief counsel or a designated associate or assistant chief counsel shall advise department staff on the proper length of the investigation. The department shall strive to complete investigations under this policy within one-hundred (100) days. Any investigation under this policy shall be completed as expeditiously as possible, and may not exceed one-hundred (100) days without the express approval of either the chief counsel or the chief counsel's designated associate or assistant chief counsel. Under no circumstances may an investigation under this policy exceed one-hundred-eighty (180) days.

(f) If the chief counsel or chief counsel's designated associate or assistant chief counsel approves an investigation under this policy, the investigation shall be monitored by the department's legal division. The chief counsel or a designated associate or assistant chief counsel shall assign a department staff counsel to monitor the investigation. The monitoring staff counsel shall perform the following tasks:

(1) Case Review Every Thirty (30) Days: At least once every thirty (30) days the assigned staff counsel and the enforcement division staff member assigned to investigate the complaint shall discuss the status of the investigation. Topics to discuss shall include the proper scope of the investigation, and whether the investigation will be completed within one-hundred (100) days.

(2) Formal Discovery: The assigned staff counsel shall review and approve any formal investigative discovery (subpoenas, requests for production of documents, written interrogatories) to ensure that the discovery requests are not overbroad, and are limited to the allegations that have been approved for investigation by the chief counsel or the chief counsel's designated associate or assistant chief counsel.

(3) Settlement/Conciliation: Any settlement discussions or conciliation attempts in an investigation under this policy shall be conducted by the assigned staff counsel. During any such settlement discussions or conciliation attempts, the staff counsel shall take special care to ensure that the respondent is not asked to sacrifice any protected First Amendment activity to settle the action or end the investigation. Additionally, staff counsel shall not discuss protected First Amendment activity in the context of any settlement or conciliation efforts.

Notes

Cal. Code Regs. Tit. 2, § 10049

1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
2. Amendment of subsections (c), (d), (e), (e)(1), (e)(3) and (f) filed 8-31-2017; operative 10-1-2017 (Register 2017, No. 35).

Note: Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12980(a) and 12980(c), Government Code; White v. Lee (9th Cir. 2000) 227 F.3d 1214; and Settlement Agreement and Stipulation of Dismissal with Prejudice, Waltz v. Brumfield, Case No. 5:08-cv-00432-JTM-OP (C.D.Cal., June 2010).

1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
2. Amendment of subsections (c), (d), (e), (e)(1), (e)(3) and (f) filed 8-31-2017; operative 10/1/2017 (Register 2017, No. 35).