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THE “DIRECT REPORT” requirements FOR AFFIRMATIVE ACTION OFFICERS IN MINNESOTA GOVERNMENT AGENCIES UNDER MINNESOTA STATUTE 43A.191 Subd. 1 (a) & (b): A law in need of understanding, implementation and enforcement Report prepared by Laurie A. Stoffer-Steiger, Attorney at Law, in her capacity as a member of the public - August, 2014 This report is dedicated with thanksgiving to the life of Bruce Lattu. His beautiful smile, courage, perseverance in spite of every of obstacle and his commitment to equal employment opportunity was an inspiration to every person his life touched.

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IMPORTANT NOTE TO READERS: As a retired state of Minnesota employee, I present this report as a public resource in the hope that the information in it will lead to compliance by state agencies with the “Direct Report” provision(s) in Minnesota Statute 43A.191, Subd 1 (a) & (b). This report is not intended to criticize any state of Minnesota public official, employee or agency head. There are stellar agency heads, leaders, employees and staff in all agencies and at all levels including Minnesota Management and Budget (MMB) and its predecessor, the Department of Employee Relations (DOER). However, this report is intended to point out what I believe is a pattern of systemic non-compliance by the State of Minnesota and its agencies with the “Direct Report” requirements in 43A.191 Subd. 1 (a) & (b). This non-compliance has occurred over the past 30 years and has likely greatly hindered Minnesota’s ability to effectively eliminate employment disparities based on race, gender and disability in Minnesota’s public employment system. I firmly believe meaningful compliance with 43A.191 Subd. 1 (a) & (b) will only occur if Governor Dayton takes prompt, direct action via a strong executive order which holds agencies accountable for implementation, compliance and enforcement of the “Direct Report” mandates and an order which contains consequences for agencies who fail to comply. The documents provided and cited in this report are from the public record. Many are available on the internet, but many are located in boxed collections of the Minnesota Historical society or the Minnesota legislative reference library. No private or confidential data under Minnesota Statute Chapter 13, has been released or shared in this report. This report is not legal advice and should not be construed as such. Persons or entities who review this report, including State of Minnesota agencies or personnel, should not rely on it for legal advice but should consult with their own legal counsel for legal advice. I do not legally represent or speak for any of the individuals, groups or entities mentioned in this report. Where I have presented opinions or statements of others, I have identified the person/entity responsible and the source document of the opinion/statement. Any conclusions or opinions expressed by me are mine and should not be attributed to other individuals, entities or groups. I received no funding, compensation or promise of future employment from the State of Minnesota or other outside entities or persons in preparing this report. All copying, mailing and distribution expenses were borne by me. Laurie Stoffer-Steiger, Attorney at Law, August 2014

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Table of Contents PART 1: MINNESOTA’S “DIRECT REPORT” REQUIREMENT FOR AGENCY AFFIRMATIVE ACTION OFFICERS (AAOS) UNDER MINN. STAT. 43A.191 SUBD. 1 (a) & (b)

A. Background/History

The push for the “Direct Report” requirement to become law in Minnesota

Direction given by the Department of Personnel, DOER and MMB regarding AAO reporting relationships

DOER’s reversal of support

The State of Minnesota’s failure to properly implement, monitor and enforce the “Direct Report” requirement

B. The historical documents, memos and letters of those who worked to get a strong “Direct Report” requirement in agency practice/law

PART 2: THE “DIRECT REPORT” REQUIREMENT EXAMINED UNDER THE MINNESOTA RULES OF STATUTORY CONSTRUCTION

A. The plain language of the provision

B. Legislative intent of the provision PART 3: DELEGATION OF AUTHORITY CONSIDERATIONS PART 4: OTHER JURISDICTIONS AND AAO/EEO REPORTING RELATIONSHIPS A. The Federal Government B. Other State Governments PART 5: CONCLUSION

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PART 1: MINNESOTA’S “DIRECT REPORT” REQUIREMENT FOR AGENCY AFFIRMATIVE ACTION OFFICERS (AAOS) UNDER MINN. STAT. 43A.191 SUBD. 1 (A) & (B) A. Background/History In 1985, Minnesota law was amended to require state agency affirmative action officers (AAOs) in agencies with over 1,000 employees, to report “administratively and on policy issues directly to the agency head”, Minnesota Statute 43A.191, Subd. 1 (a). In 1995 this identical requirement was added to 43A.191 Subd. 1 (b), for agencies with less than 1,000 employees. 1 The 1985 “Direct Report” requirement was one of a number of statutory additions to Minn. Stat. 43A.19 and 43A.191 to address the alarming disparities of protected group individuals2 in public employment. Employment disparities based on race, disability and gender have been well documented in Minnesota in the past and they have continued to the present. The 2013 “State of Minnesota Council on Black Minnesotans “Disparity Analysis,” John M. Rose, notes the “Apparent systemic failure to enforce human rights/civil rights statutes that help enable equal opportunities for all….Studies and statistics show that the well-defined disparities and inequities between Black Minnesota and mainstream, mostly White Minnesota in areas such as education, health, jobs, criminal justice, and housing, are the result of systemic patterns of discrimination.” 3

The “Direct Report” requirement was enacted in 1985 to ensure that state agency AAOs, their staff and programs, received the highest level of support, resources and direction from agency heads to enable them to effectively and independently carry out statutory mandates to ensure equal employment opportunity. It was also enacted to avoid the well-recognized conflict of interest issues arising when AAOs reported to human resources or personnel departments. Such conflict of interest issues were recognized by the Department of Employee Relations (DOER) – the agency responsible for oversight of agency affirmative action programs4 in a 2003 memo to agency heads. More recently, MMB rightly addressed conflict of interest concerns in its 2014 memo to state agencies, advising them that requiring AAOs to report to Human Resources was a conflict of interest and therefore inappropriate under 43A.191. 5 Even so, as of the date of this report, many agency website organizational charts continue to show AAOs in reporting relationships to Human Resources. Further, in most agencies, the AAO/Equal Opportunity unit/department/officer is not identified as being part of the Commissioners staff, senior management or top leadership. In some cases the AAO/Equal Opportunity officer and functions are not visible at all on the primary organization chart.6

On the federal level, requiring equal opportunity officers (EEOs) 7 to report directly to agency heads, and not to human resources/personnel departments has long been recognized and incorporated into federal regulations and guidance. This requirement was first placed in federal regulations in 1972 when the U.S. Civil Service Commission had oversight over federal equal opportunity employment.8 The EEOC now has oversight over federal equal employment opportunity laws and programs. In Part 4 of this report, federal and other states’ requirements for EEO/AAO reporting are discussed in more detail. The push for the “Direct Report” requirement to become law in Minnesota: In 1978, the Minnesota legislature added a “Direct Report” requirement to Minn. Stat. Chapter 43.15 which required state agency AAOs to report directly to the agency head “on affirmative action matters.” The provision read as follows:

Subd. 4. AFFIRMATIVE ACTION OFFICERS. Within each agency the agency

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head shall appoint an affirmative action officer who shall have primary responsibility for the administration of the agency's affirmative action plan. To the extent possible consistent with complement and budget restrictions, the affirmative action officer shall devote full time to affirmative action-related activities. The officer shall report directly to the agency head on affirmative action matters. The commissioner of personnel shall implement periodic training programs for affirmative action officers and shall provide the officers with necessary technical assistance.9

The above provision stayed put until 1981, when Chapter 43 was repealed and a new Chapter 43A was enacted to cover state government employment.10 In the new law, sections 43A.19 and 43A.191 now covered state agency affirmative action programs. A “Direct Report” requirement, however was not in the 1981 law and remained absent for the next four years. Between 1980 and 1985, demands and recommendations for a “Direct Report” requirement in Minnesota law were made by numerous protected group legislative councils, associations, and advocates, including the Department of Administration Affirmative Action Committee, the Statewide Affirmative Action Committee, the Minnesota State Affirmative Action Association, the Council on Black Minnesotans, the Minnesota Council for the Handicapped, the Governor’s Council on Affirmative Action, and Governor Rudy Perpich himself. DOER also expressed support for a stronger reporting relationship between AAOs and agency heads. Ultimately, with the impetus of Governor Perpich’s 1985 Executive Order creating the Governor’s Council on Affirmative Action, the voices of these individuals, groups and advocates came together and culminated in a series of legislative recommendations to strengthen agency affirmative action/equal opportunity programs and practices. These recommendations were successfully passed into law in 1985 as additions to Minn. Stat. 43A.19 and 43A.191. Among the newly passed provisions, was the “Direct Report” requirement for AAOs in agencies with more than 1,000 employees in Minn. Stat. 43A.191, Subd.1 which stated:

Subdivision 1. [AFFIRMATIVE ACTION OFFICERS.] (a) Each agency with an approved

complement over 1,000 shall have at least one affirmative action officer, who shall have

primary responsibility for developing and maintaining the agency's affirmative action plan. The

officer shall devote full time to affirmative action activities. The affirmative action officer

shall report administratively and on policy issues directly to the agency head.” 11

All of the new 1985 provisions independently were important but when implemented together with existing statutory mandates, they were designed to greatly increase agency accountability, oversight and enforcement of equal opportunity in public employment and more specifically, ensure that racial/ethnic minorities, females and persons with disabilities had an equal opportunity to be hired, retained, trained and promoted. Failure to implement or enforce any one of these requirements compromised (and compromises) the effectiveness of all of them. This was and is especially true with the “Direct Report” requirement because AAOs together with agency heads have ultimate responsibility for ensuring compliance with all of the requirements of 43A.191 and ultimate responsibility to move their organization in a direction to effectively remove systemic barriers and employment practices that limit or prevent equal employment opportunity.

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Direction given by the Department of Personnel, DOER and MMB regarding the AAO reporting relationships: 1978-1979: Prior to the 1985 legislative changes in 43A.191, the Department of Personnel, and DOER, respectively - acknowledged the need to ensure stronger reporting relationships between AAOs and agency heads. Examples of this pre-1985 direction are provided in a 1978 and a subsequent 1978/1979-revised Statewide Affirmative Action Report which contain sample organization charts showing solid line, indirect, dotted line or split reporting relationships between AAOs and others.12 The 1978/1979-revised report contains a chart that is structurally different from the earlier one. It is possible that this later report was an effort to comply with the newly enacted 1978 provision which required AAOs to report directly to the agency head “on affirmative action matters.”13 The “Delegation of Authority and Responsibilities” section of the 1978 report states “Affirmative Action Officers are directly accountable to their immediate supervisors and indirectly to the Equal Opportunity officers.” However the later 1978/1979-revised report states that AAOs are accountable to “the agency head.”

1983-1985: As noted above, the 1978 “Direct Report” provision in Chapter 43.15, only lasted until 1981 when Chapter 43 was repealed and replaced with 43A. Although there was no “Direct Report” provision in the newly enacted 43A, DOER provided some guidance to agencies on how and to whom AAOs should report. For example, a 10/5/1983 DOER memo to state agencies, “suggested” that they have their AAOs report “to a Deputy Commissioner or to someone else in the agency with direct access to the Commissioner if not to the Commissioner him or herself.”14 Nine months later on 7/18/1984, the DOER Commissioner sent a memo to the Governor’s Council on Affirmative Action, expressing support for a statutory mandate requiring AAOs to report directly to agency heads. The Commissioner noted that because her 10/5/1983 memo “encouraging” a reporting relationship between AAOs and agency heads “failed to accomplish its objective,” …. “the Department of Employee Relations will support legislation mandating this reporting relationship.”15 Soon thereafter, DOER’s Commissioner again noted DOER’s support for a “Direct Report” statutory mandate in an April 18, 1985 memo written to Gleason Glover,16 Executive Director of the Minneapolis Urban League, advising him that there was currently “a bill before the legislature which…requires this reporting relationship…” and that “the Department has testified before both the Senate and House Governmental Operations Committees in support of this legislation.”17 1986: DOER’s reversal of support: Although DOER initially supported the 1985 “Direct Report” amendment, within months of it becoming law, its Commissioner changed course and recommended a legislative change to significantly weaken the provision. Specifically, in a January 1986 Affirmative Action Report to the legislature, the Commissioner asked the legislature to remove the requirement that AAOs report “administratively” to agency heads, and further asked that language be added to place AAOs in “personnel departments.” The DOER proposal (as DOER presented it with strikeouts and underlining) stated:

“We recommend that 43A.191 be amended as follows: 43A.191 Agency Affirmative Action Programs.

Subdivision 1.Affirmative action officers. (a) Each agency with an approved complement over 1,000 employees shall have at least one full-time affirmative action officer, who shall have primary responsibility for developing and maintaining the agency’s affirmative action plan. The officer shall devote full time to affirmative action

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activities and be part of the personnel office of that agency. The affirmative action officer shall report administratively and on policy issues directly to the agency head.”18

This 1996 proposal by DOER was not enacted. Further, it resulted in strongly worded objections from those who had worked with DOER to get the stronger 1985 “Direct Report” provision enacted. Specifically:

In a 1/27/1986 letter from the Minnesota State Affirmative Action Association to the DOER Commissioner, its president wrote “It is with deep concern and regret that I find it necessary to write this letter. Only a year ago you joined …in support of a legislative proposal to strengthen state government’s affirmative action program. That legislative proposal subsequently became statute and established a significantly stronger framework for the executive branch to act affirmatively. In the past six months, agencies have begun implementing the new provisions. They have organizationally relocated the few full time affirmative action officers who did not already report to agency heads.” …You have completely reversed your position of a year ago concerning one essential provision of the newly revised statute: full time affirmative action officer reporting to the agency head rather than to a personnel director…As you are well aware, MSAAA’s position is that full-time affirmative action officers should report both administratively and on policy directly to the agency head….”19

In an April 1986 meeting of the Governor’s Affirmative Action Council, the Association’s president again voiced an objection to DOER’s failure to support and enforce the “Direct Report” statutory mandate. This was noted in the Council’s meeting minutes.20

In similar form, the Statewide Council on Affirmative Action lodged a lengthy objection with DOER’s Commissioner on 2/10/1986, noting their “joint expression of concern and strong disagreement” over the DOER Commissioner’s “January report to the legislature on Affirmative Action,” stating “Your recommendations on affirmative action officer reporting is particularly disturbing. Since the inception of affirmative action, it has been widely acknowledged that responsibility for affirmative action must rest with an organization’s chief executive…Even more troubling are the obvious and conflicting interests that result from placing affirmative action officers under the supervision of the personnel director whose practices the officer warrants….”21

This writer found no response by DOER to either of the above letters. Further, since 1985 to the present, in the required DOER/MMB biannual agency affirmative action reports to the legislature/ governor, there has been virtually no mention of the 1985 or 1995 “Direct Report” statutory mandates. Also, Minnesota Rules implementing 43A.19 and 43A.191, were never updated in accordance with the Minnesota Administrative Procedures Act, Minn. Stat. Chapter 14, to reflect any of the new affirmative action and equal opportunity provisions added in 1985 or thereafter.22 The State of Minnesota’s failure to properly implement, monitor and enforce the “Direct Report” requirements: Although DOER’s 1986 proposal to weaken the “Direct Report” requirement was not enacted and the 1985 “Direct Report” provision remained in place as enacted, from 1985 to the present time, this provision – and the subsequent identical 1995 provision enacted for smaller agencies – have not been appropriately implemented, monitored or enforced. Further, when commissioners with enforcement authority have provided direction to agencies on AAO reporting structures, it has:

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a. incorrectly reflected the 1978 law which only required AAOs to report to agency heads on “affirmative action matters,”23 or b. incorrectly reflected weaker indirect/dotted line, split/dual reporting relationships encouraged or recommended by DOER (and its predecessor) before 1985, or c. incorrectly reflected the language of DOER’s 1986 “recommended” statutory changes24 which would have removed “administratively report” from the provision and required AAOs to be part of “personnel.”, or d. incorrectly advised agencies that AAOs may report directly to someone two or more levels below the agency head, such as an Assistant Commissioner, Division Director or Human Resources Director.

Examples of non-compliant direction given by DOER and MMB on the “Direct Report” requirement are found in the below two guidance documents. Although guidance in both documents correctly identifies conflicts of interest inherent when AAOs report to Human Resources, the guidance is not statutorily compliant on who the AAO must report to and at what level:

DOER’s 2003 HR/Policy & Procedure #1879, where DOER states “Based on a verbal interpretation from the AG's office, a dotted line to the agency head will suffice as long as the direct report is to the Deputy or Assistant Commissioner level.”25 and

MMB’s 2014 guidance advising agencies with more than 1000 employees that “AAOs must have a direct reporting relationship to the Commissioner or have a direct reporting relationship to the Deputy Commissioner or Assistant Commissioner-level and an indirect reporting relationship to the Commissioner….. In agencies with less than 1000 employees, “AAOs or Designees may have dual roles…and dual reporting structures. The AAO must have a direct reporting relationship to the Commissioner to specifically report on issues of equal opportunity and affirmative action.” 26

Guidance in both of the above documents contains elements of each of the non-compliant examples identified in a-d above: Specifically, they allow indirect or “dotted line” reporting to the agency head. They are worded as if the requirement to “administratively report” directly to the agency head had been removed from law as DOER recommended in 1986. They incorrectly allow AAOs to report to Assistant Commissioners and they incorrectly allow AAOs in small agencies to have dual reporting relationships and directly report to the commissioner only on equal opportunity/ affirmative action issues. This guidance is in direct conflict with the 1985 and 1995 “Direct Report” provisions enacted in law, which state unequivocally “The affirmative action officer shall report administratively and on policy issues directly to the agency head. Finally, the 2003 and 2014 guidance are arguably improper agency rule-making as they do not simply announce a clear statutory requirement but interpret these provisions inconsistently with their plain language by advising agencies that other weaker reporting relationships are acceptable. Minn. Stat. 1402 subd. 427; See for example, Cable Communications Board v. Nor-West Cable, 356 N.W. 2nd 658, 667 (Minn. 1984); Faribault County v. Minnesota Department of Transportation, 472 N.W.2d 166, 170 (Minn. App. 1991)

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Minnesota agency heads are directly responsible for “the agency's affirmative action program in compliance with existing laws, federal regulations, and state rules,” and are “accountable for affirmative action compliance to the governor and to the commissioner.”28 Non-compliance/non-

enforcement of the 1985/1995 “Direct Report” requirements means that for the past 30 years, agency AAOs have consistently not been placed in the required strong solid-line reporting relationship to agency heads. Because of this, many agency heads have likely not fully understood or been directly involved with the substantial statutory mandates they are accountable for and AAOs have very likely not received the direction, compensation,29 resources, protection, staff or respect for work they are mandated to do under 43A.191. If the “Direct Report” requirement had been properly implemented, monitored and enforced these past three decades, Minnesota would likely have a public employment system with more systemic and institutionalized equitable employment practices and one which has corrected its unacceptable record of disparities based on race, gender and disability. Finally, the writer of this report notes a State of California state law worded similarly to Minn. Stat. 43A.191 Subd. 1 (a) & (b) in that it requires EEOs to report directly to the agency head. In contrast to Minnesota, the state agency responsible for enforcement has provided guidance compliant with the law and has not engaged in its own interpretation. See Part 4 of this report for further information.

B. The historical documents, memos and letters of those who worked to get a strong “Direct Report” requirement in agency practice and/or Minnesota law

Relevant excerpts from documents of individuals, groups and advocates who pushed for a stronger reporting relationship between AAOs and agency heads are summarized below in chronological order from 1980 to 1986. Although some recommendations supported AAOs reporting to an agency head, deputy commissioner or assistant commissioner, others including the Governor’s Council on Affirmative Action, recommended that AAOs report directly to only the agency head. This stronger recommendation won the day and was placed in law. The drafters made it clear that AAOs would report to the agency head not only on affirmative action matters as the 1978 law required. They would now be required to report directly to the agency head both administratively and on policy issues:

1. Department of Administration, Affirmative Action Committee Meeting Minutes and Memo, January 1980, presenting a unanimous resolution and memo recommending a “Direct Report” relationship between the AAO and the Commissioner to ensure a “direct line of communication.” The Committee’s 1/1980 memo states “The Affirmative Action Officer and the Affirmative Action Committee should report directly to the Commissioner of Administration because “the only way the Affirmative Action program can be effective is if it has direct accountability to the one person who is in a position to bring about department wide change…We believe the head of this department should take a direct and aggressive role in promoting Affirmative Action. This can only be done by establishing a direct line of communication between yourself and the affirmative action officer.”30 2. Council on Black Minnesotans 1983-85 Biennial report: Legislative Initiative #4, which supported legislation mandating that all state department “affirmative action officers report directly to the commissioners of their respective dept as opposed to the personnel officers of their departments.”31

3. 1983 study conducted by the Minneapolis Urban League to review key administrative

and decision making positions in State Government to correct historical injustice.32

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4. 10/5/1983 memo from the DOER Commissioner to Agency Heads that encouraged agencies to have their AAOs report to a “deputy Commissioner or to someone with direct access to the commissioner.”33 5. 7/7/1983 memo from Michael O’Donnell, Executive Secretary to the Cabinet to Directors and Commissioner of Minnesota State Agencies ordering them to a meeting with the Governor, the Urban League and the NAACP “to discuss your lack of sensitivity and commitment in the hiring of minorities in key positions within your agency.”34 6. 1/27/1984 memo from the Statewide Affirmative Action Committee to the Governor’s Council on Affirmative Action recommending that AAOs report directly to the agency

head, deputy or assistant commissioner.35 7. 4/6/1984 memo from the Minnesota State Affirmative Action Association to the Lieutenant Governor recommending that the Governor issue an Executive Order requiring AAOs to “report directly to the deputy or assistant commissioner.”36 8. Testimony to Governor’s Affirmative Action Council: MN State Council for the Handicapped, 4/30/1984, recommending “legislative and executive action to establish clear responsibility, authority, accountability and enforcement mechanisms for state affirmative action…” ; …… “AAOs often report to other employees whose responsibilities conflict with those of the affirmative action officer…. The authority levels established by individual agencies make action by the AAO difficult....We recommend that AAOs report directly to their dept heads or to deputy dept heads with agency wide authority.”37 9. 7/18/1984 memo from DOER Commissioner to the Governor’s Council on Affirmative Action, stating “the Department will support legislation mandating” the Direct

Report relationship between AAOs and department heads, in light of the fact that a 1983 DOER memo “encouraging a reporting relationship” between AAOs and department heads “failed to accomplish its objective.”38 10. Governor Perpich’s October 1984 memo/directive to agency heads urging them to have their AAO report directly to the agency head.39

11. 1985 Executive Order establishing a Governor’s Affirmative Action Council40 and the 1984 Governor’s Council on Affirmative Action Report:41 In 1985, Governor Rudy Perpich issued Executive Order 85-12, thereby institutionalizing a Governor’s Affirmative Action Council to monitor the State’s Affirmative Action Program and advise the Governor and legislature on equal employment opportunity. The Council was to identify issues, make recommendations to the Governor and prepare an annual report assessing affirmative action in state government and its agencies and identify barriers to the full utilization of all protected groups in employment. The Council’s report shows that by 1984/85, many protected group advocates and individuals believed legislation was necessary to require AAO’s to report directly to the agency head. In their report, the Council specifically recommended this provision and it was subsequently enacted into law.

Excerpts from the 1984 Governor’s Council on Affirmative Action’s Report recommending a “Direct Report” relationship to the Agency Head: Among the Council’s identified concerns was a finding that “The effectiveness of the Affirmative Action Officer is limited by the reporting relationships in the departments.” They therefore recommended that AAOs be statutorily required to report directly to the agency head.

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The Council noted: “Over the last 8 months the Council has looked at the practices within state government in order to provide recommendations on how Affirmative Action might be more effectively accomplished in state government. The Council is satisfied that it has received enough information to draw the following conclusions:

1. There is little consistency in the way Affirmative Action plans and goals are developed and monitored. It was difficult to identify who within state government had final accountability for Affirmative Action. Equally unidentifiable were consequences for missed Affirmative Action opportunities, and unaccomplished goals. 2. There is unevenness in the strength of the Affirmative Action officer position from agency to agency. Less than qualified personnel are often in a position to make decisions in an area in which they have received little, if any, training. 3. The Affirmative Action function seems to go begging for staff and managerial support to accomplish the objectives, recognition of the position demands, and the skills and perseverance required to accomplish an unpopular objective. Affirmative Action officers are asked to implement goals when they have not had an opportunity to suggest: (a) how the goals are developed ( b ) if they make sense for the agency and (c) if they alleviate an under-representation. 4. Agency heads have received no clear, specific expectations and direction from the Governor’s office. Affirmative Action will happen when it receives as much attention and is talked about as much as the state budget. If there is no mention of Affirmative Action from the Governor to his key staff members, then it is assumed to be unimportant

THE AFFIRMATIVE ACTION POSITION: Issues • The effectiveness of the Affirmative Action Officer is limited by the reporting relationships in the departments. • Uniform compliance with Affirmative Action programs cannot be achieved using the part-time designee system rather than full-time Affirmative Action Officers. •There is inconsistency in the duties and levels of authority in the full-time Affirmative Action position. Recommendations 1. A “Direct Reporting” relationship between Affirmative Action Officers and agency heads should be established. 2. The Affirmative Action part-time designee position should be eliminated. Smaller agencies should have a full-time Affirmative Action Officer combine resources so that full-time Affirmative Action professionals can be shared by several agencies. 3. A classification and compensation study should be implemented on the Affirmative Action Officer position. 4. Affirmative Action Officers should be provided with adequate support staff to fulfill their responsibilities in a timely and professional manner. 5. Legislation should be enacted which requires the State Director of Equal Employment Opportunity to report directly to the Governor's office.

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12. 4/18/1985 letter from DOER Commissioner to Executive Director, Minneapolis Urban League advising that there is a bill before the legislature which would require a “Direct Report” relationship between AAOs and agency heads. 42 13. 1/23/1986 letter to DOER Commissioner from Minnesota State Affirmative Action Association objecting to DOER’s 1986 recommendation to the legislature to weaken the newly enacted “Direct Report” provision. The Association noted DOER’s reversal of position and failure to enforce the new provision, reminding the Commissioner that AAOs must report “both administratively and on policy directly to the agency head” to “avoid conflict of interest in being supervised by the same office whose practices are monitored and to improve and clarify accountability and organizational authority.”43 14. 2/10/1986 letter to DOER Commissioner from members of the Statewide Affirmative Action Committee objecting to DOER’s failure to enforce the “Direct Report” statutory mandate and noting “it has been widely acknowledged that responsibility for affirmative action must rest with an organization’s chief executive…even more troubling are the obvious conflicting interests that result from placing affirmative action officers under the supervision of the personnel director whose practices the officer monitors.”44 15. 4/30/1986 Governor’s Affirmative Action Council Meeting minutes – noting a complaint registered by the Minnesota State Affirmative Action Committee objecting to DOER’s failure to enforce the “Direct Report” statutory mandate.45

The above documents clearly show that protected group advocates, committees and councils increasingly demanded a stronger “Direct Report” requirement for AAOs. In response to their demands, the Governor’s Council on Affirmative Action recommended legislation requiring a direct, solid-line reporting relationship between AAOs and agency heads. There is nothing in the Council’s report indicating that they anticipated or would have accepted agencies re-interpreting the 1985 provision to allow for weaker dotted line, indirect or split reporting relationships. State agencies already had these weaker reporting structures. By 1985 advocates/drafters were convinced that they were not effective large agencies. By 1995, they were convinced that they were also not effective in smaller agencies. Finally, Documents 14, 15 and 16, show that protected group councils and committees immediately registered strong objections to DOERs failure to enforce the “Direct Report” mandate and to DOER’s attempt to get the legislature to change the mandate to a weaker provision.

PART 2: THE “DIRECT REPORT” REQUIREMENT EXAMINED UNDER THE MINNESOTA RULES OF STATUTORY CONSTRUCTION A. The plain language of 43A.191, Subd.1(a) & (b): Under Minnesota laws of statutory construction, “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn. Stat. 645.16. The words “must” or “shall” in a statute are construed as “mandatory.” The word “may” is construed as permissive, Minn. Stat. 645.44, subds. 15, 16, 17. The “Direct Report” provisions in 43A.191, Subd.1(a) & (b), use the mandatory word “shall” – not “may” in stating “The affirmative action officer shall report administratively and on policy issues directly to the agency head.” This provision is clear, free from ambiguity and stated unequivocally.

The text of an unambiguous statute must be interpreted “according to its plain language,”

without adding words to supply what the legislature either purposely omitted or inadvertently overlooked. Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.

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App.1994). “Dotted line,” “indirect,” “split” or “dual” reporting relationships are not mentioned in the plain language of 43A.191 Subd. 1 (a) & (b), yet DOER and MMB’s guidance add these words as if the law included them. Additionally their guidance adds additional persons to whom the AAO may report: “deputy commissioner” and “assistant commissioner.” “Dotted line,” “indirect,” “split” or “dual” reporting relationships were standard practice before 1985 and were ineffective. If these relationships were working, there would have been no need for the new provisions because these weaker relationships were status quo. The drafters of the “Direct Report” provisions were also careful to distinguish the language from the earlier and weaker 1978 provision in Minn. Stat. 43.15 which only required AAOs to report directly to the agency head “on affirmative action matters.” In contrast, the 1985 provision

specified that the AAO shall report both “administratively and on policy issues directly to the agency head.” Again in 1995, the legislature added an identical “Direct Report” requirement for agencies with less than 1,000 employees along with another provision prohibiting all AAOs from being placed in the unclassified service.46 Both of these changes indicate that the legislature wanted to further support AAOs in smaller agencies and further strengthen AAO positions agency-wide by requiring them to be in the classified service. Under Minnesota’s canons of statutory construction, “words and phrases are construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a special meaning, or are defined in this chapter, are construed according to such special meaning or their definition, Minn. Stat. 645.08.1. The Oxford Dictionary provides the following definitions of “directly”: “at once”, “in a little while” or “With nothing or no one in between.” In the employment context to “report directly” or to “report administratively,” consistently means the employee reports directly to one person/entity in a solid line reporting relationship, with no one in between. That one person is directly responsible for supervising, directing, reviewing the employee’s work and holding him/her accountable. To “administratively report” is frequently described as the strongest kind of reporting relationship. It is a common requirement for auditors to “administratively report” or “report directly” to a CEO, agency head or Board of Directors to ensure accountability and independence at the highest level.47 Lack of accountability, independence and support of AAOs were key concerns that the Governor’s Council on Affirmative Action and that protected group advocates wanted addressed in the new law. 48 This writer found no other examples where a statutory mandate such as “shall report directly” or “shall report administratively and on policy issues directly to the agency head” has been interpreted by a state or entity with enforcement authority to allow a “dotted line,” “indirect,” “split” or “dual” reporting relationship. These words mean the opposite of “shall report directly.” There are many laws that allow indirect or dual reporting relationships, but they are stated specifically and clearly with language such as “Jane Doe shall report administratively to John Doe and functionally to the Board of Directors”; Or “Jane Doe shall report directly to the Director of Plant Management and indirectly to the Safety Committee. “

B. Legislative intent of the provision: Even if one were to argue that the “Direct Report” provision is not clear and legislative intent controls, the factors to be considered under Minn. Stat. 645.16, would still require a direct and solid line reporting relationship between the AAO and the agency head and nothing less. Below is a discussion of the relevant factors supporting this position:

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1. (1) the occasion and necessity for the law (2) the circumstances under which it was enacted (3) the mischief to be remedied and (4) the object to be attained: The record shows that necessity/circumstances for a stronger AAO/agency head reporting relationship was triggered during the 1980s by widespread and growing recognition of the unacceptable and systemic record of protected group disparities in Minnesota’s public employment. The practices of “encouraging” AAOs to report directly to agency heads or allowing AAOs to report indirectly, via a dotted line or in a split reporting relationship were not effective. Even DOER’s commissioner admitted this by stating that her 1983 memo “encouraging” agencies to have AAOs report to the agency head was not effective.49 Ultimately, the Governor’s Council on Affirmative Action, recommended that specific legislation be enacted requiring a “Direct Report” relationship between AAOs and agency heads to increase independence and accountability and to ensure support of equal opportunity at the highest level. 2. (5) The former law, if any, including other laws upon the same or similar subjects: The drafters of the 1985 provision were also careful to distinguish it from the earlier and weaker 1978 provision in Minn. Stat. 43.15 which only required AAOs to report directly to the agency head “on affirmative action matters.” The 1985 “Direct Report” provision was stronger and more specific stating that “The affirmative action officer shall report administratively and on policy issues directly to the agency head.” This new law required direct reporting on all matters – both policy and administratively. Further, the 1995 amendment for agencies with less than 1,000 employees was identical to the 1985 provision. If the legislature wanted to weaken or rewrite this provision, they would have done so in 1995. Instead they added the identical reporting requirement for smaller agencies and further strengthened the AAO position for all agencies regardless of size, by preventing AAOs from being placed in the unclassified service.

3. (6) The consequences of a particular interpretation: The consequences in accepting

the State of Minnesota’s directives and interpretations which allow for weaker, indirect or dual reporting relationships for AAOs, means accepting the premise that the law was written with the convenience of agency heads in mind. However, the “Direct Report” requirements were not written to benefit agency heads, but were placed in law to benefit protected group individuals and ensure support, protection and accountability at the very highest level for AAOs, their staff and the programs they are mandated to implement under 43A.191. These provisions were not enacted to make the jobs of agency heads less complicated, or to encourage them to delegate their responsibilities or to serve as a barrier between the agency head and their AAO staff, programs and mandates. Unfortunately all of these outcomes have occurred in Minnesota State agencies because the provision has not been properly implemented, monitored or enforced.

PART 3. DELEGATION OF AUTHORITY CONSIDERATIONS

Minnesota Statute Chapter 15.06, Subd. 6, General powers of commissioners, allows agency commissioners to delegate specific statutory powers or duties, but states unequivocally that only a deputy commissioner has all of the powers of duties of a commissioner. It further provides that delegations of duties must comply with Chapter 43A:

“Except as otherwise expressly provided by law, a commissioner shall have the following powers: (1) to delegate to any subordinate employee the exercise of specified statutory powers or duties as the commissioner may deem advisable, subject to the

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commissioner's control; provided, that every delegation shall be made by written order, filed with the secretary of state; and further provided that only a deputy commissioner50 may have all the powers or duties of the commissioner; (2) to appoint all subordinate employees and to prescribe their duties; provided, that all departments and agencies shall be subject to the provisions of chapter 43A. The duties of Minn. Stat. 43A.191 are statutory duties and the agency head is directly accountable to the Governor and the MMB Commissioner for implementing them.51 Minnesota Statute 43A.191 Subd 1 (a) & (b) states unequivocally that “The affirmative action officer shall report administratively and on policy issues directly to the agency head.” Since a deputy commissioner is the only person who has all of the powers and duties of the agency head, it follows that agency commissioners may only delegate their 43A.191 duties to a deputy commissioner - and in that case, only via a written order filed with the secretary of state. The drafters of the “Direct Report” provision did not likely anticipate that agency heads would or could delegate their 43A.191 duties to a deputy commissioner. The writer of this report does not believe doing so comports with the plain language of the statute or the legislative intent of the provision. Nevertheless, under Chapter 15.06, subd. 6, it seems that agency commissioners could choose to delegate their 43A.191 duties to a deputy commissioner, with a properly filed delegation. In that case the AAO would report directly in a solid line reporting relationship to the Deputy Commissioner.

In sum under Minn. Stat. 43A.191, Minn. Statute 15.06, Subd. 6, and Minnesota Rules 3905.0300, it is clearly not compliant for an agency to have their AAOs in a dotted line, indirect, split or dual reporting relationship to anyone. It is impossible to satisfy the delegation of authority provisions and the mandate that an AAO “shall report administratively and on policy issues directly to the agency head” when he/she is not in fact reporting to the agency head. Further, it is clearly not compliant with law for an AAO to report to a Division Director or a Human Resources Director. A Division Director does not have all of the powers and duties of a commissioner and is two levels below the agency head. A Human Resources Director does not have all of the powers and duties of a commissioner, often reports two to three levels below the agency head and a reporting relationship between the AAO and Human Resources is a clear conflict of interest. PART 4. OTHER JURISDICTIONS AND REPORTING RELATIONSHIPS OF AAOS/EEOS

Below is summary information related to how other state and federal jurisdictions address the reporting relationships of EEOs/AAOs. Please note, this discussion is not exhaustive. The writer of this report did not review every state’s affirmative action or equal opportunity laws. What the information does show is that is that outside of Minnesota, the issue of where and to whom EEOs/AAOs report is an important and key consideration of protected group individuals/advocates and public employees and officials, in designing or legislating effective equal employment opportunity programs and practices. Federal: On the federal level, requiring equal opportunity officers (EEOs) 52 to report directly to agency heads, and not to human resources/personnel departments has long been recognized and incorporated into federal regulations and guidance. The Equal Employment Opportunity Commission (EEOC) monitors federal agency compliance with regulations found at 29 C.F.R.1614.102.53 Under the regulations, each federal agency:

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“shall…designate a Director of Equal Employment Opportunity (EEO Director), EEO Officer(s), and such Special Emphasis Program Managers …. clerical and administrative support as may be necessary to carry out the functions described in this part in all organizational units of the agency and at all agency installations. The EEO Director shall be under the immediate supervision of the agency head.”

Recently, the EEOC, issued proposed regulations advising federal agencies that their affirmative action officers must adhere to regulations which require that they report directly to the agency head. Further, the proposed regulations specifically forbid the officer from reporting to human resources (called “personnel function”).54 The EEOC regularly reviews federal agency compliance with equal opportunity mandates, including a review of the EEO Director’s reporting relationship to determine if he or she is truly under the “immediate supervision of the agency head.” A 2011 EEOC Annual Report on the Federal Workforce noted that “Seventy-four (74%) percent of EEO Directors report to Agency Head.”55 However, lack of full compliance has been a concern stated by many. For example, a recent EEOC Women’s Work Group Report stated “Many of our dialogue partners reported that their agencies do not comply with MD-715, in which we require that the Director of Equal Opportunity be under the immediate supervision of the agency head.” Similarly, the EEOC

African American Work Group’s report noted that where EEO Directors do not directly report to the agency head, it results in “a serious threat to the effectiveness of the agency’s EEO programs.” 56 Below are examples of EEOC program evaluations of two agencies that did not comply with the requirement that EEOs be under the immediate supervision of the agency head: Example: EEOC Program Evaluation of FWS: A June 2010 EEOC review letter of the U.S. Fish and Wildlife (FWS) Department includes an instructive discussion on the federal requirement that EEO’s report directly to the agency head, and the problems that arise when they do not.57 In this audit the EEOC found that “the structure of FWS’s EEO program violates EEOC regulations and compromises its effectiveness,” noting that the reporting relationship for the EEO Director was particularly compromised because he reported to the Chief of Human Resources who in turn reported to the Assistant Director of Human Capital. Further, the Assistant Director restricted his access to upper management and told him it would be insubordinate if he spoke to the FWS Director or FWS Deputy Directors without her being present. The EEOC also noted with concern the fact that the Assistant Director referred to the EEO program as a “dumping ground for minorities,” and had downsized the program from 23 to

9 employees. Further, the EEO Chief position had been progressively downgraded resulting in a revolving door situation, as persons in these positions did not remain but went on to pursue higher level jobs. At the end of its letter the EEOC stated “FWS must remove its EEO program from under Human Capital and provide the EEO Chief direct access to the FWS Director. We strongly believe that this one change will alleviate many of the personality driven issues and power struggles that have been compromising the EEO program for the last ten years and that over time it will result in a better EEO program and more diverse workforce.” Example: EEOC Program Evaluation of SSA: A May 14, 2014 EEOC Program Evaluation of the Social Security Administration (SSA) raised similar concerns with the SSA’s Office of Civil Rights and Equal Opportunity’s (OCREO) reporting structure. They found that the “SSA’s Associate Commissioner of OCREO does not report to the Commissioner of the Social Security Administration….. SSA’s organizational structure was in clear violation” of EEOC regulations

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and directives. The EEOC was also concerned that the OCREO Associate Commissioner reported to the Deputy Commissioner of HR (DCHR) which was a conflict of interest. Despite EEOCs findings and recommendations, the DCHR advised the EEOC that she had no plans to change this reporting relationship. Ultimately, the SSA’s refusal to follow the EEOC’s directives triggered a letter of complaint from members of congress and subsequently a review by the SSA Office of Inspector General. 58 A recent Baltimore Sun article noted that Acting SSA Commissioner Carolyn Colvin ordered an action plan to make the EEO program a model program and would now require the OCREO Associate Commissioner to report directly to her.59 Other states: In other states, systemic issues, including weak reporting relationships in affirmative action/equal opportunity programs have been a cause of concern to state legislators, protected group individuals/advocates, public employees and officials and others. Some state laws and/or executive orders mandate that AAOs/EEOs report directly to the agency head: Example: The State of California: The State of California Government Code section 19795, subdivision (a), states: “…The appointing power of each state agency and the director of each state department shall appoint, at the managerial level, an equal employment opportunity officer, who shall report directly to, and be under the supervision of, the director of the department, to develop, implement, coordinate, and monitor the agency’s equal employment opportunity program...”60

In California, the California Department of Human Resources (CDHR) is the agency responsible for enforcement/oversight of equal opportunity in state government (e.g. their role is like that of MMB in Minnesota). CDHR issued guidance on 9/27/13, underscoring the importance of compliance with the direct report requirement:

Role and Major Responsibilities of the Equal Employment Opportunity Officer, Ref.# 2013-032: It is essential that an EEO Officer be able to objectively monitor and assess the department’s personnel policies and practices, to recommend administrative changes to prevent discrimination and to continuously facilitate EEO.2 By reporting to the director, the EEO acquires the visibility and the level of support needed to ensure that the department’s EEO efforts are appropriately addressed and implemented at all levels within the department. Agencies are encouraged to include the EEO Officer in “senior staff” meetings because of the position’s policy influencing role.

In contrast to Minnesota’s guidance, this guidance is compliant with the plain language of the statute and does not add additional types of reporting relationships not reflected in the statute.

The State of Illinois Example: State of Illinois law requires AAOs to report directly to the agency head and also contains a provision protecting them from agency retaliation. In agencies with 1,000 or more employees it provides that “The EEO Officer shall report directly to the agency’s Chief Executive Officer and shall be on the Chief Executive Officer’s administrative staff.” 61 The law further provides for protection of EEO officers as follows:

“d) Protection – An EEO Officer who performs his/her duties as prescribed in the Act and this Part shall not be coerced, intimidated or retaliated against by the agency or any official, employee or agent thereof as a result of such performance. An EEO Officer who believes that he/she has been or is being so coerced, intimidated or retaliated against, or in any other way impeded from the performance of official duties, may immediately file a charge with the Department. Nothing provided herein shall preclude an agency from disciplining an EEO Officer for just cause.”

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The State of New York Example: In 1983, the Governor Mario Cuomo issued Executive Order #6 which required equal opportunity and affirmative action in public employment. This order has been continued by subsequent governors and provides, among other requirements that:

“The head of each State agency or department shall designate an employee as the agency's full-time affirmative action officer and report such designation to the President of the Civil Service Commission and the Executive Committee. The affirmative action officer shall report directly to the agency head and shall have such supportive staff as may be appropriate to accomplish his or her duties. The numbers and levels of such staff shall be based on such factors as agency size, complexity, need for affirmative action, and the amount of State and federal funds administered.”62

A 2010 “Report on the Roles and Responsibilities of Affirmative Action Officers in New York State,” by the “Commission on Increasing Diversity in the State Government Workforce,” found that “empirical and anecdotal evidence indicates there has not been full accountability or full compliance with the State’s affirmative action policy for many years” and that “insufficient leadership from the Executive Branch is…contributing to a weakening of the State’s overall implementation of Executive Order No. 6 and the Model Plan.” 63 The Commission noted that “the majority of agency AAO’s do not report directly to their agency heads and are not performing their duties on a full-time basis.” They recommended that agencies be required to “confirm that each agency AAO is a high-level person on staff who reports directly to the agency head.”

Further, a 2013 bill introduced in New York to strengthen public affirmative action programs provides insight into problems arising when AAOs are not in proper reporting relationships and are not given the support, protection and resources necessary to independently carry out their jobs.64 The bill would require legislation mandating that *affirmative action officers and administrators shall report directly to their agency head.” Written justification for the bill stated that “A 2005 report by the New York State Assembly Puerto Rican/Hispanic Task Force, a subsequent public hearing and other meetings with minority workers has yielded valuable suggestions that need legislative action to remedy what the 2005 report called, an appalling under-representation of minorities in civil service and policy making positions in the Pataki Administration. This is one of five proposals put forward by task force to address the problems. The lack of workforce diversity now seen in New York State was created because over the years affirmative action officers/administrators have no job protection, and are marginalized by agency heads. In fact, many of the current employees performing such duties are not MOs. This legislation reverses this situation and strengthens the role of these employees by providing them with a variety of tools.

The bill’s summary also noted: “Section 2 - requires that every affirmative action officer/administrator employed by a state agency shall be employed the agency head and report directly to that person and no one else in so as to provide these employees with access to the top decision making authority in that agency. This will help address the issue of lack of diversity in state agencies because workforce planning issues by agency heads will have input by such employees.”

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PART 5: CONCLUSION This report has set forth the historical background and rationale for the “Direct Report” requirements found in Minnesota Statute 43A.191 Subd. 1 (a) & (b), by taking the reader through the documents, memos, letters and reports of those who worked to get these provisions enacted into law in 1985 and 1995 respectively. When this background is considered along with the plain language of Minnesota Statute 43A.191 Subd. 1 (a) & (b), the Minnesota rules of statutory construction, legislative intent, and delegation of authority parameters, the following conclusion appears clear: Affirmative Action Officers must report directly to the agency head and only the agency head, unless the agency head has delegated affirmative action/equal opportunity responsibilities to a Deputy Commissioner, in a proper document filed with the Secretary of State. In that case the Affirmative Action Officer will report directly to the Deputy Commissioner. Further, AAOs may not be placed in indirect, dotted line, split or dual reporting relationships to anyone. For the past 30 years, the guidance issued by Minnesota agencies with enforcement authority over state agency affirmative action programs, has arguably not reflected the law. This non-compliance with 43A.191 Subd. 1 (a) & (b), has:

resulted in Affirmative Action Officers (AAOs) being placed in weaker and less supportive reporting relationships than required and in some cases resulted in AAOs having no relationship to or communication with the agency head;

resulted in AAO’s being placed two and even three levels below the agency head, including reporting to Human Resources, presenting clear conflict of interest issues;

likely contributed to the lack of progress by agencies toward eliminating disparities based on race, gender and disability in public employment;

likely meant that in many cases AAO’s have not received the compensation, staff, resources, status and respect required for them to effectively work with the agency head and senior leadership to move the organization toward true equal employment opportunity in Minnesota;

likely resulted in marginalization, and in some cases retaliation, toward AAOs and their staff when they have voiced concerns about non-compliance or attempted to initiate meaningful and needed changes to end discriminatory employment practices that serve as barriers toward qualified protected group individuals being hired, retained, promoted and/or trained.

It is a violation of law for a public officer or employee to (1) intentionally fail to perform a known mandatory duty; (2) act knowingly in excess of or contrary to lawful authority, Minn. Stat. 609.43. Non-compliance with the “Direct Report” provisions will likely continue for another 30 years without strong action. Therefore the writer of this report respectfully requests that Governor Dayton issue an executive order that directs agency heads and agencies as follows: 1. AAOs must report directly to the agency head and only the agency head. Agencies may not delegate this responsibility to a Deputy Commissioner without express permission from the Governor. Agencies who do not comply with this are subject to sanctions, including …… 2. Agency heads must directly supervise and meet regularly with the AAO and provide guidance, support, appropriate staff and resources to the AAO so that statutory mandates can be effectively carried out. 3. Other agency staff or officials may not prohibit AAO’s from reasonably and regularly communicating with the agency head and may not require prior approval for doing so.

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4. Interference with or retaliation against AAO’s and their staff for performing their statutory duties is strictly prohibited. Agency heads/officials/employees who engage in such actions will be subject to corrective action, discipline, discharge and/or removal from their positions. 5. An Ombudsman position will be created in the Office of Legislative Auditor. The Ombudsman will annually survey all agency AAOs and their staff to determine whether they are reporting directly to the agency head, have meaningful/regular access to the agency head, are compensated appropriately and have the staff and resources needed to effectively carry out statutory mandates. The Ombudsman will receive and follow up on complaints or concerns of retaliation or interference with statutory duties raised by AAOs and their staff. The Ombudsman shall initiate a formal investigation where warranted. Investigative findings will be shared with the Governor and the MMB Commissioner for appropriate follow up action if warranted. 6. AAOs are to be an active participant on the agency’s senior management team, visibly identified on the agency’s primary organization chart, showing a direct line from the AAO to the agency head, with no one in between. 7. Annually, agency heads will set up a meeting with the agency head, the agency AAO and his/her staff, the Commissioner of Management and Budget, the MMB Director of Equal Employment Opportunity and the Legislative Auditor to discuss roles and responsibilities and ensure compliance with this Executive Order and all responsibilities under Minn. Stat. 43A.191. 8. No later than x/x/x, all agency AAO’s shall have their positions evaluated giving appropriate consideration to their direct accountability to the agency head, their placement on the senior leadership team, the size and budget of the agency and the statutory mandates they are responsible for implementing. In agencies with more than 1,000 employees, the AAO position must be a manager and be compensated at or above the level of the agency Human Resources Director. 1Web-links: 1Sp1985 c 13 s 172 , and 1995 c 248 art 10 s 8-10 The full text of the 43A.191, Subd. 1, as it reads today is found at https://www.revisor.mn.gov/statutes/?id=43A.191 2 Protected groups are defined in state law as racial/ethnic minorities, persons with disabilities and females. Minn. Stat. 43A.02, Subd.33. Veterans are also supported in Minnesota affirmative action law under numerous statutory provisions, Minn. Stat. 43A.09, 43A.11, 43A.121 and 43A.184. 3See for example, the following reports on protected group disparities:

State of Minnesota Disparity Analysis, John M. Rose, 2013: http://mn.gov/cobm/pdf/COBM%20-%202013%20Research%20Report%20on%20Disparities.pdf.

Report of Minn. Advisory Committee to U.S. Commission on Civil Rights, Unemployment Disparity in Minnesota & MPR news article: http://www.mprnews.org/story/2014/01/17/civil-rights-report

MPR article Gender Wage Gap Targeted in New Legislation, by Matt Sepic: http://www.mprnews.org/story/2014/01/30/news/gender-wage-gap

Minnesota State Council on Disability Report: Competitive Employment for Persons with Disabilities http://www.disability.state.mn.us/employment/mscod-employment-position-paper/

4In 2007, DOER was abolished and its affirmative action oversight responsibilities were transferred Minnesota Management and Budget (MMB). In chronological order, the Department of Personnel, DOER and (currently) MMB have been respectively responsible for oversight of agency affirmative action program compliance. 5 See HR Policy/Procedure 1379 at http://www.mn.gov/mmb/employee-relations/laws-policies-and-rules/statewide_hr_policies/index.jsp and Attachment 1, MMB 6/12/2014 memo to agencies.

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6 See for example, MPCA org chart at http://www.pca.state.mn.us/index.php/about-mpca/mpca-overview/agency-structure/mpca-organization.html 7 Minnesota agency affirmative action officers perform the same duties that federal EEOs perform, e.g. ensuring equal employment opportunity, investigating/responding to discrimination complaints, ensuring reasonable accommodations, etc. 8 Attachment 2, Federal Register, Vol. 37, No 205, 10/22/1972 9 Laws of Minnesota, 1978, CHAPTER 708-S.F.N0.1364 10 Laws of Minnesota, 1981, CHAPTER 210—S.F.No. 876 11 As noted earlier, in 1995, this exact requirement was added to agencies with less than 1,000 employees. 12 Feb. 1978 Affirmative Action Plan: http://archive.leg.state.mn.us/docs/pre2003/other/772521.pdf and 1978/79 Revised Affirmative Action Plan: http://archive.leg.state.mn.us/docs/pre2003/other/792868.pdf 13 See Footnote 9, and discussion of the 1978 law on page 5. 14 Attachment 3, 10/5/1983 DOER memo 15 Attachment 4, 7/18/1984 memo from DOER to the Governor’s Council on Affirmative Action 16 Gleason Glover was a prominent local civil rights leader who worked his entire life to correct social injustice, inequality and racism in Minnesota. His 1994 untimely death, was noted with sorrow in the Congressional Record and elsewhere. He is in the “Golden Valley Hall of Fame” for his tireless contributions toward equality. 17 Attachment 5, 4/18/1985 DOER letter to MPLS Urban League 18 1986 DOER Report to Legislature: http://archive.leg.state.mn.us/docs/pre2003/mandated/860359.pdf 19Attachment 6, 1/27/1986 Minnesota State Affirmative Action Association complaint 20 Attachment 7, 4/28/1986 meeting minutes, Governor’s Council on Affirmative action 21 Attachment 8, 2/10/1986 Statewide Council on Affirmative Action complaint 22 Minn. Rules Chapter 3905, State Agencies, Affirmative Action 23 See Footnote 9, and discussion of the 1978 law on page 5. 24 1986 DOER Report to Legislature: http://archive.leg.state.mn.us/docs/pre2003/mandated/860359.pdf 25 See HR Policy/Procedure 1379 at http://www.mn.gov/mmb/employee-relations/laws-policies-and-rules/statewide_hr_policies/index.jsp 26 Attachment 1, MMB 6/12/2014 memo to agencies. 27 Minn. Stat. 14.02 Subd. 4. Rule: "Rule" means every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure. 28 Minnesota Rules 3905.0300, Duties of Agency Heads 29 Many AAOs and their staff are members of protected groups. As females, racial/ethnic minorities and persons with disabilities it should concern agencies that their compensation is likely well below what it would be if they were in correct solid-line reporting relationships to the agency head as mandated by 43A.191. In the Hay process used by the State to determine proper classification and compensation, jobs will be rated higher or lower depending upon the level of accountability and the reporting structure in place for the position. 30 See Attachment 9, 1/2/1980 minutes and 1/8/1980 memo from AAC to Commissioner 31 Council on Black Minnesotans 1983-85 Biennial Report, Legislative Initiative #4: http://archive.leg.state.mn.us/docs/pre2003/mandated/840558.pdf 32 See Attachment 10, 6/30/1983 letter from Minneapolis Urban League to Governor Perpich

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33 Attachment 3, 10/5/1983 DOER Memo 34 Attachment 11 , 7/7/1983 memo from Michael O’Donnell to agency heads 35 Attachment 12, 1/27/1984 memo from Statewide Affirmative Action Committee to the Governor’s Council on Affirmative Action 36 Attachment 13, 4/6/1984 memo from State Affirmative Action Association to the Lt. Governor 37 Testimony to Governor’s Affirmative Action Council: MN State Council for the Handicapped: http://archive.leg.state.mn.us/docs/pre2003/mandated/841056.pdf 38 Attachment 4, 7/18/1984 memo from DOER to the Governor’s Council on Affirmative Action 39 Attachment 14, Governor Perpich’s October 1984 memo/directive to agency heads 40 Perpich Executive Orders, Note: Scroll to #85-12: http://www.leg.state.mn.us/lrl/execorders/eoresults.aspx?search=govsearch&gov=3 41Web-link: 1984 Governor’s Affirmative Action Council Report: http://archive.leg.state.mn.us/docs/pre2003/mandated/850363.pdf 42 Attachment 5, 4/18/1985 DOER letter to Minneapolis Urban League 43 Attachment 6, 1/27/1986 Minnesota State Affirmative Action Association complaint 44 Attachment 8, 2/10/1986 Statewide Affirmative Action Committee complaint 45 Attachment 7, 4/28/1986 meeting minutes, Governor’s Affirmative Action Council 46 Web-link: 1995 c 248 art 10 s 8-10 47 See for example Journal of Accountancy article, by Ken Tysiac http://www.journalofaccountancy.com/news/20137291.htm 48 See documents in Part 1B above. 49 Attachment 3 50 Note: a "deputy director" is the equivalent of a “deputy commissioner” when the department head bears the title "director" (and the deputy director is the immediate subordinate of the agency head) Minn. Stat. 15.06 Subd. 7: https://www.revisor.mn.gov/statutes/?id=15.06 51 Minnesota Rules, 3905.0300 DUTIES OF AGENCY HEAD 52 As noted in Footnote 7, Minnesota AAOs perform virtually the same duties that federal EEOs perform. 53 Web-link: EEOC regulations at 29 CFR 1614.102: http://www.dol.gov/oasam/regs/cfr/29cfr/Part1614/1614102.htm 54 Web-link: http://www.eeoc.gov/eeoc/newsroom/release/2-24-14.cfm 55 Web-link: http://www.eeoc.gov/federal/reports/fsp2011/ 56Web-links: http://www.eeoc.gov/federal/reports/women_workgroup_report.cfm and http://www.eeoc.gov/federal/reports/aawg.cfm 57 EEOC letter to U.S. Fish and Wildlife: http://federal-sector-discrimination.com/app/download/6590522704/EEOC+Letter+to+US.+Fish+and+Wildlife+Services.pdf 58 Congressional Letter to SSA: http://democrats.oversight.house.gov/press-releases/cummings-mikulski-and-cardin-urge-immediate-action-to-strengthen-social-securitys-equal-employment-program/ SSA.OIG.review ; OIG Review: http://oig.ssa.gov/audits-and-investigations/audit-reports/A-13-12-22143. 59 Baltimore Sun Article: http://articles.baltimoresun.com/2014-07-17/news/bs-md-social-security-equal-opportunity-20140717_1_workplace-discrimination-complaints-eeoc-commissioner-carolyn-w 60 Web-link: www.calhr.ca.gov/PML%20Library/2013032.pdf http://oig.ssa.gov/audits-and-investigations/audit-reports/A-13-12-22143. 61 Web-link: http://www.ilga.gov/commission/jcar/admincode/056/056025200H07800R.html 62 Web-link: https://www.goer.ny.gov/Labor_Relations/ManagementConfidential/handbook/appdxf.cfm 63 Web-link: www.cs.ny.gov/pio/Commission_AAO_Final_Report.pdf 64 Web-link: http://open.nysenate.gov/legislation/bill/S1271-2013