Human Rights Bureau rules against DOC in Havre case

The chief of the Montana Human Rights Bureau wants the state to institute two hours of sexual harassment training every two years for all probation and parole officers after a bureau investigator determined that a probation officer in Havre had sexually harassed one of his clients.

Human Rights Bureau Chief Katherine Kountz also wants the state Department of Corrections to provide copies of the state's nondiscrimination and antiharassment policies to every person who is on probation or parole.

Kountz suggested the changes in department policy in a two-page letter attached to a report by Human Rights Bureau investigator Ron Chen, who looked into two complaints filed by a Havre woman against former state probation and parole officer Edward L. Schmidt and the state of Montana.

According to Chen's report, the 40-year-old woman was a victim of discrimination because Schmidt subjected her to unwelcome sexual advances, including touching her, masturbating at her home in her presence and making sexually suggestive comments. In a written statement he submitted to Chen, Schmidt denied the woman's allegations.

Kountz declined to comment about Chen's report or the recommendations made by the Human Rights Bureau.

An attorney for the state Department of Corrections, which oversees the Probation and Parole Bureau, stressed that the two provisions in Kountz's letter are merely recommendations.

Although attorney Colleen White said she thinks the continuing sexual harassment training is a good idea, "there has been no decision yet made" about whether DOC will implement the changes recommended by the Human Rights Bureau.

In an e-mail, White outlined the training that the department requires for new probation and parole officers.

"The Probation and Parole Basic Training Course, totaling 160 hours, includes a section on sexual harassment, staff sexual misconduct and cultural diversity training (4.0 hours)," she said. "Two additional sections instruct on appropriate interactions with clients: Professionalism and Ethics (2.0 hours) and Interviewing Techniques (2.0 hours)."

Schmidt's phone number in Havre has been disconnected. His attorney, Francis McCarvel of Helena, did not immediately return phone calls seeking comment.

Schmidt, who resigned from the state Probation and Parole Bureau, has been charged with official misconduct as a result of a separate criminal investigation by the state Division of Criminal Investigation. He has pleaded not guilty and is scheduled for trial in June.

In August, the alleged victim filed two complaints with the Human Rights Bureau claiming sexual discrimination in the area of government services. The first complaint, filed against Schmidt, was rejected because the woman did not allege "a violation of the Montana Human Rights Act or the Governmental Code of Fair Practices," Chen's report said.

Kountz, while declining to discuss the specifics of Chen's report, said the law the woman's complaint alleged Schmidt violated does not allow someone to file a human rights complaint against an individual, only against an agency.

Chen ruled in the woman's favor in the second complaint, filed against the state of Montana.

Kountz's letter said the bureau determined that "unlawful discrimination occurred" and gave the parties 30 days to reach a settlement. Kountz said the Human Rights Bureau would approve a settlement only if it required two hours of mandatory training every two years for probation and parole officers and notification of people on probation about their rights.

Chen's report said Schmidt attended only one workshop on sexual harassment during his 13-year career - in 1997 - and that DOC never gave the alleged victim any "statement or policy on unlawful discrimination" or "told her that sexual harassment was unlawful."

Kountz's letter said that if the two parties could not reach a settlement within 30 days, the case would be assigned to a hearing examiner at the state Department of Labor and Industry.

Great Falls lawyer Pat Flaherty, who represents the alleged victim, said the settlement negotiations were unsuccessful, and the case has been assigned to hearing examiner Terry Spear.

Spear will hear the case and decide whether to dismiss it or affirm Chen's findings. If Spear determines that discrimination did occur, he will issue an order that could include Kountz's recommended policy changes for DOC, as well as a monetary award, Flaherty said.

Spear's ruling is subject to appeal in state District Court, he added.

If it is determined that the alleged victim is entitled to monetary damages, the taxpayer could end up footing the bill, DOC attorney Colleen White said.

"Generally, all state agencies are insured by risk management companies. Discrimination cases may fall outside that coverage, and the individual agency may have to cover that," she said.

The state Division of Criminal Investigation began an investigation in July when the woman made a complaint about Schmidt to the Hill County Sheriff's Office.

Chen's report said DOC was aware of the complaint, but "decided not to suspend Schmidt at the time because he had scheduled a lengthy vacation beginning on or about July 13, 2003, and because (the woman) allegedly had a well-known reputation for lack of credibility."

The woman has been convicted two times of providing false reports to law enforcement, according to court records.

On July 11, DCI investigator Ken Thompson interviewed Schmidt, who voluntarily provided a DNA sample, according to Chen's report.

According to the report, Schmidt's supervisors were told Sept. 3 by the Division of Criminal Investigation that the carpet sample taken from the woman's home tested positive for Schmidt's DNA. Schmidt was suspended from his job. Four days later, he submitted his resignation, according to Chen's report.

The Human Rights Bureau began an investigation in August after the alleged victim filed the two complaints.

Chen concluded that the woman was denied government services because Schmidt used his position as a probation officer to engage in sexual conduct with her.

He also found that Schmidt ignored instances when she violated her probation.

"He did not take any action to revoke her probation, although he recorded two incidents where she was intoxicated," the report said. "Schmidt did not carry out his statutory responsibilities in administering his services as a probation officer and cite (the woman) or recommend revocation of her probation for violating its terms. Therefore the Investigator concludes the State refused, withheld from or denied (the woman) its services because of her sex."

Schmidt declined to be interviewed by the bureau but denied the woman's claims in written documents, Chen's report said. The report said Chen did not find Schmidt's statement credible.

Chen dismissed testimony from one witness who suggested that the woman welcomed Schmidt's sexual advances. The human rights investigator said he does not believe the conduct was consensual, citing Schmidt's authority to send the woman to jail if she did not comply with his demands.

"This disparity in equality in their relationship, taken together with the other evidence, negates any inference that (the woman) welcomed Schmidt's sexual conduct even though she submitted to it," Chen wrote.