7. CITY COUNCIL AGENDA

Transcription

1 Regular 7. CITY COUNCIL AGENDA Meeting Date: 04/01/2013 TITLE: Draft Non-Discrimination in Employment and Housing Practices Ordinance and materials Responsible Staff: Gary J. Riedner Backup Material: Backup material attached Digital Presentation: No Other Resources: Other Non-City Resources: Information DESCRIPTION: The State and Federal government prohibits discrimination in employment and housing practices for a number of characteristics but do not do so for sexual orientation or gender identity/expression. The draft ordinance would make it a misdemeanor to discriminate against a person because of their sexual orientation or because of any gender identity/expression. The proposed procedure would require a complaint to be filed at the Moscow Police department, which would investigate the complaint. Following the investigation, the City Prosecutor would screen the claim for legal sufficiency. If the claim is legally sufficient and appears likely to be valid, the City Prosecutor would forward the claim and materials to the City Attorney who would then invite the parties to mediate (thus establishing an "ethical wall" to separate the criminal process from the civil process and to prevent leakage of information). Upon successful mediation of the matter, the case would be dismissed. If the case is not successfully mediated, the City Attorney would send the matter back to the City Prosecutor for further action (i.e., prosecution as a misdemeanor, or dismissal, or other resolution). "Other resolution" includes, but is not limited to, the reduction of the misdemeanor to an infraction. The draft ordinance states the purposes of the ordinance, has an extensive definition section (based, in part, on Idaho Human Rights language), includes exemptions to avoid conflicts with other governmental agencies, "expressive associations", churches, and limited living arrangements (i.e., two family dwellings and boarding houses). It also prohibits retaliation for filing a claim or assisting in enforcement. The draft ordinance and attached materials have been reviewed by representatives of the Moscow Human Rights Commission, Moscow Fair and Affordable Housing Commission, and by Moscow Police Chief David Duke. This was reviewed and recommended for approval by the Administrative Committee on March 25, STAFF RECOMMENDATION: 1. Approve the Ordinance under suspension of the rules requiring three complete and separate readings and that it be read by title and published by summary; or consider the Ordinance on first reading and that it be read by title; or reject the Ordinance; or take such other action deemed appropriate. 2. If the Ordinance is approved, approve associated Resolution or direct staff as deemed appropriate. ACTION:

2 1. Approve the Ordinance under suspension of the rules requiring three complete and separate readings and that it be read by title and published by summary; or consider the Ordinance on first reading and that it be read by title; or reject the Ordinance; or take such other action deemed appropriate. 2. If the Ordinance is approved, approve associated Resolution or direct staff as deemed appropriate. NECESSARY RESOURCES/IMPACTS (PERSONNEL): None. NECESSARY RESOURCES/IMPACTS (OTHER) None. Fiscal Impact NECESSARY RESOURCES/IMPACTS (FISCAL): None. Attachments Ordinance - Gender Discrimination Resolution Non-Discrimination Prosecution of Discriminatory Conduct Memo Non-Discrimination Process Map - Flow Chart Pros and Cons Attachment - Boise Ordinance Attachment - Sandpoint Ordinance Attachment - SLC Ordinance (employment) Attachment - SLC Ordinance (housing) Attachment - ACLU draft ordinance changes Attachment - Pocatello Ordinance Attachment - Ketchum Ordinance Attachment - 24 CFR (HUD) Attachment - Boy Scounts v Dale HR Commission Recommendation Fair & Affordable Housing Commission Recommendation

3 ORDINANCE NO AN ORDINANCE OF THE CITY OF MOSCOW, A MUNICIPAL CORPORATION OF THE STATE OF IDAHO; PROVIDING FOR THE AMENDMENT OF MOSCOW CITY CODE TITLE 10, BY THE ADDITION OF CHAPTER 19; TO PROHIBIT DISCRIMINATORY ACTS IN HOUSING, EMPLOYMENT, AND PUBLIC ACCOMMODATIONS BASED UPON SEXUAL ORIENTATION AND/OR GENDER EXPRESSION/IDENTITY, AS DEFINED; PROVIDING THAT THE PROVISIONS OF THIS ORDINANCE BE DEEMED SEVERABLE; AND PROVIDING FOR THIS ORDINANCE TO BE IN FULL FORCE AND EFFECT FROM THE DATE OF ITS PASSAGE, APPROVAL AND PUBLICATION ACCORDING TO LAW. WHEREAS, state and federal laws prohibit discrimination in the areas of employment, public accommodation, and housing on the basis of race, color, age, sex, national origin, familial status, veteran s status, and/or disability, but there are no specific protections against discrimination on the basis of sexual orientation or gender expression/identity; and WHEREAS, the Council believes that current State and Federal processes for the investigation and correction of discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, familial status, veteran s status, and/or disability are sufficient such that the City should not interfere or alter such processes; and WHEREAS, those within the community who feel that they are or have been discriminated against on the basis of race, color, religious creed, ancestry, age, sex, national origin, familial status, veteran s status, and/or disability should be encouraged to make their claim for such discrimination directly to the state and/or federal agency directly responsible for receiving and investigating those claims; and WHEREAS, because there are no specific protections against discrimination on the basis of sexual orientation or gender expression/identity within City limits, the Mayor and Council wish to prohibit such discrimination through a duly adopted City Ordinance; and WHEREAS, it is the policy and intent of the City of Moscow, Idaho that no person be denied equal protection under the law nor shall any person be discriminated against because of his or her sexual orientation or gender expression/identity; and WHEREAS, nothing contained herein shall be construed as supporting and/or advocating any particular doctrine, position, point of view, or religious view; and WHEREAS, it is the intention of this Ordinance that all persons are treated fairly and equally in the City of Moscow, Idaho; and WHEREAS, the new Chapter 19 of Title 10 shall be entitled Non-Discrimination in Employment and Housing Practices ; ORDINANCE DISCRIMINATION PAGE 1 OF 6

4 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF MOSCOW, IDAHO, AS FOLLOWS: SECTION 1: That Moscow City Code Title 10 be amended by the addition of a new Chapter 19, Non-Discrimination in Employment and Housing Practices, as follows: Sec Purpose and Declaration of Policy. A. The City has determined that discrimination on the basis of sexual orientation and/or gender identity/expression shall be prohibited, as set out in this Chapter, in order to help ensure that all persons, regardless of sexual orientation and/or gender expression/identity, are afforded equal opportunities for employment, in housing, commercial property, and in the use of public accommodations. B. It is hereby declared that every person in the City has the right to work and to earn wages through gainful employment, has the right to seek housing, and has the right to enjoy public accommodation and hospitality. C. It is hereby declared to be the public policy of the City to foster employment of all persons in accordance with their abilities. Discriminatory employment practices are detrimental because they impede the social and economic progress of a city by preventing all of the city's occupants from contributing to the cultural, spiritual, social, and commercial life of the community. Such contributions are fundamental components of the City's growth, vitality, and prosperity. D. It is the intent of this Chapter that all persons be treated fairly and equally. It is the express intent of this Chapter to foster and support fair and equal treatment under the law to all people in the City. The denial of fair and equal treatment under the law due to sexual orientation and/or gender identity/expression is detrimental to the health, safety, and welfare of the city's occupants, and such damages a city's economic well-being. E. This Chapter shall be deemed an exercise of the police power of the City for the protection of the public welfare, prosperity, health and peace of the City, its residents, occupants, and the community at large. F. The prohibitions against discriminatory acts, as provided for in this Chapter, are intended to supplement state and federal civil rights laws and regulations prohibiting discrimination in the areas of employment, public accommodations, and housing; therefor, this Chapter shall not apply to complaints alleging discrimination on a basis proscribed under state or federal law (e.g. race, color, religious creed, ancestry, age, sex, national origin, familial status, veteran s status, and/or disability). G. Nothing in this Chapter is intended to alter or abridge other rights, protections, or privileges secured under state and/or federal law. This Chapter shall not create a private cause of action, nor shall it create any right or remedy that is the same or substantially equivalent to remedy provided under federal or state law. H. This Chapter shall not create any special rights or privileges which would not be available to all of the City s citizens because every person has a sexual orientation and a gender identity. I. This Chapter shall be construed and applied in a manner consistent with First Amendment jurisprudence regarding the freedom of speech and exercise of religion. ORDINANCE DISCRIMINATION PAGE 2 OF 6

5 Sec Definitions A. Deny. Any act which, directly or indirectly, by any person or their agent or employee, results or is intended to or calculated to result in whole or in part in any discrimination, distinction, restriction, or unequal treatment or representation. It also includes, but is not limited to, requiring a person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from persons admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement except for conditions and limitations established by law and applicable alike to all persons, regardless of sexual orientation and/or gender expression/identity, B. Discrimination. Any direct or indirect exclusion, distinction, segregation, limitation, refusal, denial, or other differentiation in the treatment of a person because of a person s actual or perceived sexual orientation or gender identity/expression or because of a person s association with any such person. Discrimination shall not mean and shall not be interpreted to require or to grant or to accord any preferential treatment to any person because of that person s sexual orientation or gender expression/identity. C. Educational Institution. A public or private institution, including an academy; college; elementary or secondary school; extension course; kindergarten; nursery; school system; university; business; nursing, professional, secretarial, technical, or vocational school; or agent of such an educational institution. D. Full Enjoyment. The right to use, rent or purchase real property; any service, commodity or article of personal property offered or sold by any person or establishment to the public; and the admission of any person to accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement; free from acts directly or indirectly causing persons of any particular sexual orientation and/or gender identity/expression to be treated as not welcome, accepted, desired or solicited. E. Gender Identity/Expression. Actual or perceived gender-related characteristics, identity, appearance, expression or behavior of a person, regardless of such person's biological or assigned sex at birth. F. Housing Accommodation. A building or portion of a building (as defined in the Zoning Code), whether constructed or to be constructed, that is or will be used as the home, domicile, residence, or sleeping quarters for occupants. G. Otherwise Qualified. A person who possesses the following bona fide job related qualifications required by an employer for any particular job, job classification, or position: education; training; ability; character; integrity; disposition to work; adherence to reasonable rules and regulations; and other bona fide job related qualifications required by an employer. H. Place of Public Resort, Accommodation, Assemblage or Amusement. Any public place, licensed or unlicensed, kept for gain, hire or reward, or where charges are made for admission, service, occupancy or use of any property or facilities, whether conducted for the entertainment, housing or lodging of transient guests, or for the benefit, use or accommodation of those seeking health, recreation or rest, or for the sale of goods and merchandise, or for the rendering of personal services, or for public conveyance or transportation on land, water or in the air, including the stations and terminals thereof and the garaging/storing of vehicles, or where food or ORDINANCE DISCRIMINATION PAGE 3 OF 6

6 beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation or public purposes, or public halls, public elevators and public washrooms of buildings and structures occupied by two (2) or more tenants, or by the owner and one (1) or more tenants, or any public library or any educational institution wholly or partially supported by public funds, or schools of special instruction, or nursery schools, or day care facilities or children's camps. Nothing herein contained shall be construed to include, or apply to, any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, provided that where public use is permitted, such use shall be covered by this definition. This definition excludes any educational facility operated or maintained by a bona fide religious or sectarian institution. I. Sexual Orientation. Actual or perceived homosexuality, heterosexuality, and/or bisexuality. Sec Prohibited Discriminatory Acts. The following acts are prohibited: A. Employment. To deny to a person otherwise qualified the right to work because of sexual orientation and/or gender identity/expression by: 1. failing or refusing to hire; 2. discharging from employment; 3. barring from employment; 4. discriminating against a person in compensation or in other terms or conditions of employment; or 5. otherwise discriminating against a person with respect to employment. B. Use. To deny to or to discriminate against any person because of sexual orientation and/or gender identity/expression, the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage, or amusement. C. Housing. To deny to or discriminate against a person because of sexual orientation and/or gender identity/expression in the sale, purchase, lease or rental of any housing accommodation, or to otherwise discriminate in the terms and conditions, maintenance, improvement or repair of any housing accommodation. Sec Exceptions. A. This Chapter shall not apply to: 1. A religious corporation, association, educational institution, or society, trust or any entity or association which is a wholly owned or controlled subsidiary or agency of any religious corporation, association, society, trust or corporation sole. 2. An expressive association whose employment of a person protected by this Chapter would significantly burden such association s rights of expressive association under Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 3. The United States government, any of its departments or agencies, or any corporation wholly owned by it; or the state of Idaho or any of its departments, agencies, or political subdivisions, except the City of Moscow, Idaho. ORDINANCE DISCRIMINATION PAGE 4 OF 6

7 B. This Chapter shall not apply to: 1. the rental of a dwelling unit within a two (2) family dwelling where the owner of the two (2) family dwelling, or a relative of the owner, resides within one (1) of such dwelling unit(s), as such terms are defined by the Zoning Code; or 2. the rental of rooms within a Boarding House, as defined by the Zoning Code and the Idaho Code. Sec Penalty. A. Any person violating any of the provisions of this Chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished pursuant to this Code. B. A violation may be reduced to an infraction, payable by a fine as set from time to time by Resolution of the Council, if the defendant engages in corrective actions, which may include, but are not limited to the following: sensitivity training for the defendant and/or the defendant s employees; the defendant s agreement to adopt and pursue a policy of nondiscrimination in its practices; and/or the defendant s agreement to not engage in discriminatory practices in the future. There shall be no right to a trial by jury for an infraction. C. A complaint filed under the provisions of this Chapter shall be filed within one hundred eighty (180) days of the alleged discriminatory conduct. Sec Unlawful Intimidation, Retaliation, and Interference. It shall be unlawful for any person to discriminate against, harass, threaten, harm, damage, or otherwise penalize another person for opposing an unlawful practice, for filing a complaint, for assisting, or participating in the investigation in any manner, or participating in mediation related to this Chapter. Sec No Private Right of Action or Money Damages. There is no private right or cause of action created by this Chapter. No money damages are available to any person based on this Chapter. SECTION 2: SEVERABILITY. Provisions of this Ordinance shall be deemed severable and the invalidity of any provision of this Ordinance shall not affect the validity of remaining provisions. The remaining sections of Title 10 shall be in full force and effect. SECTION 3: EFFECT ON OTHER ORDINANCES. Where the definitions contained in this Ordinance are in conflict with relevant portions of the City of Moscow, Idaho, Municipal Code, the definitions contained within those portions of the Moscow Municipal Code will be unaffected until such time, if any, as they are amended to be consistent with this Ordinance. SECTION 4: EFFECTIVE DATE. This Ordinance shall be effective upon its passage, approval, and publication according to law. ORDINANCE DISCRIMINATION PAGE 5 OF 6

8 PASSED by the City Council and APPROVED by the Mayor this day of, ATTEST: Stephanie Kalasz, City Clerk Nancy Chaney, Mayor ORDINANCE DISCRIMINATION PAGE 6 OF 6

9

10

11 MEMORANDUM TO: Gary J. Riedner, City Supervisor FROM: Randy Fife, City Attorney DATE: February 20, 2013 RE: Non-Discrimination Ordinance Attached please find a draft proposal for an Ordinance entitled Non-Discrimination in Employment and Housing Practices which I propose to be considered for inclusion as Chapter 19 of Title 10. I have prepared it based upon my review of the law and a number of ordinances and regulations. Perhaps it will give some assistance to the various individuals and groups considering the matter, including the Mayor, Council, City s Human Rights Commission, Fair Housing Commission, and the public. SECTION I. The Ordinance is based principally on the recent ordinance passed by the City of Boise. The reason that I have based the draft on Boise s ordinance is because it seems to fit what I perceive to be the City s needs without probable legal challenges (like those likely to be faced by the City of Sandpoint s ordinance) and because it is somewhat less comprehensive than the approach taken by the City of Salt Lake City (SLC). Sandpoint s and SLC s approaches are legitimate but I think Boise s ordinance is a significant improvement and simplification. Pocatello is considering an ordinance very similar to Boise s ordinance and Ketchum s appears to be a hybrid of Boise s and Sandpoint s ordinance. A. Boise s Ordinance I chose the Boise Ordinance as the principal model upon which to structure the proposed draft because the approach utilizing a city board or commission (e.g., Sandpoint s/slc s) creates a number of reasonably significant legal problems including those related to the utilization by a private citizen of the mayor s subpoena power; difficulties related to the Open Meetings Law (where a commission would be conducting investigations); and problems with the Public Records Law (because it is not clear that an investigation by private citizens on a board commission meets the exemption from disclosure under Idaho Code 9-335). Boise based some of its language on the Idaho Human Rights Statute, rather than the federal language, in order to avoid inconsistencies and because the State of Idaho has already spoken on the matter, to some extent, through its Commission on Human Rights. I have taken some language from the SLC Ordinance and placed it both in the Section regarding Purposes and Policy, and also in the definition of otherwise qualified. NON-DISCRIMINATION ORDINANCE PAGE 1 OF 7

12 B. Sandpoint s Ordinance While the City of Sandpoint contains admirable language, it also creates legal problems that have not been, to my mind, adequately resolved. For example, some definitions are so broad that they may include a refusal by someone to allow a person to attend a private party at a private dwelling. Sandpoint did not define the difference between public or private accommodations. Even though Sandpoint s is a criminal statute, there is no definition of retaliation or aiding, abetting, inciting, compelling, and coercion. This is likely to cause problems when prosecution is challenged. Sandpoint creates a review board which has its own authority to promulgate procedures (rather than Sandpoint City Council). I am concerned about the delegation of powers in a criminal statute from a city council to a board (especially in light of the fact that Idaho is a Dillon s Rule state and because there is no specific authority given to the mayor or a city council to delegate subpoena power). I have not found authority for subpoena power granted to a board and it is not set out in Sandpoint s ordinance. To me, that will be a problem for a judge to determine. Sandpoint s staff does not appear to play a role in their investigative board s process. This separation/independence may be challenged as ultra vires exercise of authority. Allowing a city appointed board to investigate, in my opinion, subjects the board s investigation record to the Idaho Public Records Law. This is especially true if the investigative board s action acts as a recommendation to the City of Sandpoint. See I.C (13). I have serious concerns about whether the board s investigative action is subject to the Idaho Open Meetings Act because of the breadth of definitions of decisions, deliberation, and public agency. See, I.C (1), (2), and (4). If the investigative board s activities are meetings, the board s activities must all be done in public pursuant to the process required by State statute. I would also note that mediation is not subject to the Public Records Law only if all parties agree that it is not and if the final decision is a public one. If all parties do not agree contractually, a mediation is subject to the Idaho Open Meetings Act (potentially) and the Idaho Open Records Law (potentially). Most mediation requires a contractual agreement that binds the parties to confidentiality, so this should not be an unsolvable problem. I do not criticize Sandpoint as Idaho s first city to attempt to create an anti-discrimination ordinance, I just feel that it could be improved upon (as Boise s ordinance does). I spoke to the City Attorney of Sandpoint, Idaho, Scot Campbell, at the Idaho Municipal Attorneys semi-annual meeting in Boise on February 1, He explained that Sandpoint s procedure includes investigation done by the police department (not by a commission) and a mediation process similar to SLC s and Boise s. A complainant is required to verify the complaint (in order to avoid false allegations). The only complaint received by Sandpoint so far was one which was never verified and, therefore, dismissed. Scot suggested that, as an alternative to police investigation, a person assigned to enforce city code (such as Moscow s Code Enforcement Officer or Building Official) could possibly perform the investigation and, in this way, could potentially keep the allegations private until enough investigation materials had NON-DISCRIMINATION ORDINANCE PAGE 2 OF 7

13 been received and assessed to require the investigation information to be disclosed as part of the criminal proceeding. C. Salt Lake City s Ordinance SLC s approach is slightly different from Sandpoint s. SLC has two (2) ordinances. The first (Salt Lake City Code Chapter 10.04) addresses unlawful discriminatory employment practices. The second (Salt Lake City Code Chapter 10.05) addresses discriminatory housing practices. Unlawful Discriminatory Employment Practices In SLC s employment practices ordinance, there are numerous definitions and exemptions. It also contains a list of unlawful employment practices [ (A-F)], and procedures for filing a complaint with an administrator (i.e., a person appointed by the mayor). Upon complaint, the administrator begins an investigation which may result in conciliation and a dismissal of the complaint or a referral to the SLC attorney for filing of a civil fine of $500 (if fifty or fewer employees) or not more than $1,000 (if employing 51 or more employees). Unlawful employment practices are listed under the following topics: (a) employers; (b) employment agencies; (c) labor organizations; (d) training programs; (e) notices and advertisements; and (f) no preferential treatment. Unlawful Discriminatory Housing Practices: SLC housing practices ordinance is administered through the mayoral power. It contains numerous definitions and exemptions and a list of unlawful housing practices divided into sections governing the general public who lease and real estate brokers or salespersons. Exceptions include any rental of a single family dwelling if the owner does not have interest in four (4) or more single family dwellings at one (1) time; has not sold two (2) or more single family dwellings in which the owner was not residing within two (2) years preceding such sales; and where there is no broker or agent or salesperson or third party involved in the sales. The SLC ordinance also excludes dwellings occupied by an owner where there are no more than four (4) families living independently from another. D. The Alternative Draft from the Fair Housing Committee: Without repeating myself, the draft I was given from Fair Housing (attached) continues the problems from Sandpoint s ordinance. I would note that, although it was apparently drafted by ACLU attorneys in Boise, its features were not adopted by Boise City Council. E. Pocatello s Draft Ordinance Pocatello s draft ordinance (attached) very closely follows Boise s. It includes a provision prohibiting false reports and includes direct reference to the mediation process conducted pursuant to the Idaho Rules of Criminal Procedure. NON-DISCRIMINATION ORDINANCE PAGE 3 OF 7

14 F. Ketchum s Ordinance Ketchum s Ordinance appears to be a hybrid between Boise s and Sandpoint s ordinances. It establishes a Human Relations Review Board that has jurisdiction over prohibited discriminatory acts committed within the City of Ketchum. The Board s functions apparently include the responsibility to review complaints, to suggest mediation and to investigate the complaint in coordination with a local law enforcement agency (without designating which agency). This includes issuing subpoenas and commanding the production of records to assist the Board in its investigation. If there is a finding of cause by the Board in its findings of fact, the Board refers the matter to the City Attorney to pursue civil, equitable, or criminal remedies. My concerns with this approach is similar to my concerns with Sandpoint s ordinance (especially relative to the Board s exercise of subpoena power and its investigation powers with agencies, which is not limited to the Ketchum Police department). SECTION II. The approach drafted is very similar to Boise s approach. It should provide a relatively confidential means for members of the public to complain about allegations of incidents of discrimination (because the criminal investigation by MPD is confidential and exempt from disclosure pursuant to the Open Records Law until the criminal case is filed, generally). Like other similar ordinances, the draft ordinance is specifically intended not to overlap other statutes and ordinances that deal with preventing discrimination. The process of diversion to mediation will allow the parties to work together to resolve the matter in question. The fact that the Ordinance makes discrimination a misdemeanor is likely to provide a defendant with enough incentive to take mediation seriously. If charges are filed in the magistrate court, the City Prosecutor has a tool that is designed to lead to a resolution of the matter (i.e., the reduction of the violation to an infraction if the defendant takes some meaningful remedial steps to ensure acts of discrimination do not occur in the future). A. A General Outline of the Proposed Ordinance The draft Ordinance has the following features: 1. The Purposes and Declarations of the Policy are stated in Section 1. These include the attempt to eliminate discrimination based upon sexual orientation and/or gender identity/expression in housing and employment while avoiding an overlap in enforcement where the State and/or Federal agencies prohibit the discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, familial status, veteran status, and/or disability. MCC The Definitions Section is very similar to that of Boise s anti-discrimination ordinance on the same subject matter. You may note that there is no definition of person because that definition is already contained in Moscow City Code 1-1-3(E)(14). NON-DISCRIMINATION ORDINANCE PAGE 4 OF 7

15 The definitions of gender identity/expression and sexual orientation are altered slightly from the Boise and SLC ordinances to reflect comments in the HUD discussion of 24 CFR 5 changes related to sexual orientation and gender identity. 3. The prohibited discriminatory acts are in the areas of employment (MCC (A)); use of public facilities (MCC (B)); and housing (MCC (C)). 4. Exceptions in the Chapter include religious organizations, the United States government; the State government and its agencies and departments; and expressive associations as set out in the Supreme Court case of Boy Scouts of America v. Dale, 530 U.S. 640 (2000). MCC Quite a bit of the ordinance contains language about what the ordinance is not. This is necessary to avoid overlap with state and federal efforts and to avoid preemption and jurisdictional concerns/challenges. Please note that the draft also excludes two (2) family dwellings (e.g., duplexes) and rooms within a boarding house. The language follows the Zoning Code. 5. Misdemeanor Penalties are provided; however, a violation may be reduced to an infraction fine if the defendant takes sufficient actions to eliminate future discrimination. MCC Of course, the City Prosecutor has discretion to dismiss charges if he/she believes that to be appropriate to the circumstances. There is a section which make it a misdemeanor to intimidate, retaliate or interfere with an investigation for allegations of sexual orientation and/or gender identity/expression. MCC There is also a specific statement that the Ordinance creates no private cause of action. MCC B. General Outline of the Proposed Process I recommend that the City consider adopting an ordinance making discrimination in housing, employment and places of public accommodation on the basis of sexual orientation, and/or gender identity/expression a misdemeanor (unless reduced, as explained below). It has been drafted as a new Chapter 19 in Title 10, entitled Non-Discrimination in Employment and Housing Practices. Complaints would be made by reporting the alleged discriminatory conduct directly to the Moscow Police Department (MPD). Officers/detectives would investigate and generate a police report, witness statements, supplements, and/or audio recordings. Once the MPD investigation is complete, the report would be routed to the City Prosecutor. After receiving the report from MPD, the City Prosecutor would conduct a preliminary review to ensure that the City has jurisdiction, that the complaint is not frivolous nor made for the purpose of harassment. The City Prosecutor would also ensure that the complaint, if true, would be a violation of the Ordinance. If the materials meet the screening conditions, the case would be sent to the City Attorney by the City Prosecutor for further action. The purpose for the transfer is to create an ethical wall within the City Attorney s office to allow the matter to be discussed (and perhaps resolved) without formal prosecution. NON-DISCRIMINATION ORDINANCE PAGE 5 OF 7

16 The City Attorney would send an invitation to mediate to the complainant and defendant. If the parties choose to engage in mediation, the City Attorney or the parties would procure a mediator who would have thirty (30) days [or some other specific time period] to mediate the matter. In the event the parties successfully mediate to a resolution, the mediator will provide such written and signed resolution to the City Attorney. After review to confirm the sufficiency of the resolution, the City Attorney will notify the City Prosecutor, who will close the file without further review for criminal charges. In that case, because no criminal charge will have ever been formally filed, formal dismissal will not be necessary. In the event the parties decided against mediation or in the event the mediation is unsuccessful, the City Attorney would send the matter to the City Prosecutor who would normally proceed to prepare the case for the filing by a formal misdemeanor complaint. The charge may or may not be filed, based upon the results of the original investigation. If filed, the City Prosecutor would prosecute the case as with any other misdemeanor law violation. Violation of the ordinance would be a misdemeanor (technically punishable by up to six (6) months in jail and/or up to a one thousand dollar ($1,000) fine, but more probably a fine of approximately two hundred fifty five dollars ($255) for each offense). As drafted, if a defendant who is alleged to have committed an act of discrimination in violation of the Ordinance takes remedial steps, trains his/her employees, or otherwise conforms his/her conduct to the Ordinance, the charge can be amended to an infraction (punishable by a $67 fine plus court costs [or another sum determined by the Council to be appropriate]). Please note that, while MPD is investigating a criminal case, public records requests for the complaint are properly denied. See I.C (1)(a), (b), and (c). The complaint remains exempt from public disclosure while it is in the City Attorney s office awaiting screening and further processing. It should remain confidential until after the mediation opportunity and referral back to the City Prosecutor. If the case is ultimately filed in magistrate court, the parties (as well as the facts and circumstances) will become public. If charges are not filed, the reports may be released with certain privacy redactions, pursuant to the Idaho Public Records law. Flow Chart I have attached a process flow chart that should visually explain the process of encouraging resolution and future prevention of discrimination rather than primarily focusing on criminal punishment. You will note that there is an ethical wall between the City Attorney and the City Prosecutor which should allow a diversion of the matter into mediation without creating violations of confidentiality/secrets or without overlapping the civil process with criminal processes. Considerations SECTION III. 1. Should the Section 1 statement of Purposes and Declarations be shorter? NON-DISCRIMINATION ORDINANCE PAGE 6 OF 7

17 2. Is the exemption regarding dwellings adequate? Should it include language regarding townhouses and/or twinhomes? 3. Should the unlawful housing practices be more specifically listed (as in the SLC Ordinance)? 4. Should the penalty be a misdemeanor, infraction, or escalating infraction amounts? 5. Should the infraction fine amount be different than the current infraction amount? 6. Should the anti-discrimination ordinance process be adopted as a City Resolution? SECTION IV. Attachments 1. Draft Non-Discrimination Ordinance 2. Flow Chart 3. Pros and Cons 4. Resolution Boise Ordinance 6. Sandpoint Ordinance 7. Salt Lake City Ordinance (Employment) 8. Salt Lake City Ordinance (Housing Practices) 9. ACLU draft ordinance changes 10. Pocatello Ordinance 11. Ketchum Ordinance CFR Parts 5, 200, 203, et al. (HUD) 13. Boy Scouts of American v. Dale RDF/pm Attachments NON-DISCRIMINATION ORDINANCE PAGE 7 OF 7

18 Complaint to Police. Police Investigate Complaint. Discrimination Ordinance Process Map If parties successfully mediate, complaint is closed and not considered for further prosecution. Police report sent to Prosecutor for review. Preliminary review by City Prosecutor. Matter closed if: City has no jurisdiction; Alleged violation would not violate the ordinance even if true; Complaint is frivolous or brought only to harass; etc. If complaint is facially valid, Prosecutor sends to City Attorney who invites parties to mediate. Parties agree to mediation. City Attorney forwards to mediator who has 30 days to complete mediation. If mediation declined, complaint and report are send by City Attorney to City Prosecutor for consideration of filing of charges. If mediation is unsuccessful, complaint and report are sent to City Prosecutor for consideration of filing of charges. Misdemeanor charge is filed at City Prosecutor s discretion or if defendant takes remedial steps, the misdemeanor charge may be reduced to an infraction or case may be dismissed.

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

168

169

170

171

172

173

174

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

191

192

193

194

195

196

197

198