A civil rights ordinance has been a topic of discussion by this present City Council as well as previous Councils. Most recently, at the Work Session of July 10, 2012, Council indicated its desire to continue this discussion and consider policy questions relevant to establishing a Civil Rights Ordinance. These policy questions include such things as: Who will be protected? How will an ordinance be enforced? What businesses or organizations will be affected? Will there be any exceptions?

In order to learn from the experiences of another city that had adopted a civil rights ordinance, Council invited the Mayor of Salt Lake City, Ralph Becker, to the Council Work Session of September 25, 2012. Mayor Becker shared some of his thoughts and perceptions pertaining to his work on Salt Lake City’s civil rights ordinance and answered questions from Council and the public.

As Council considers the many options it has for creating a civil rights ordinance for Flagstaff, it may find it beneficial as background information to review the current status of protections and policies that are already available to our citizens.

Protections:

• Arizona Revised Statutes 13-702 provides for enhanced sentencing for criminal offenses committed against a person based upon the defendant’s perception of the victim’s identity with any of the following groups: race, color, religion, national origin, sexual orientation, gender, or disability. These protections under Arizona Revised Statutes notwithstanding, a civil rights ordinance addresses, as civil matters, non-criminal behaviors such as discrimination in the workplace or in places of public accommodation.
   
• The Arizona Attorney General’s Office Division of Civil Rights investigates and resolves complaints of discrimination in employment, housing, and public accommodation made by any person including citizens of Flagstaff. Most of these complaints, if filed with the AG’s Office, are considered to be “dual-filed” with the federal government. It should be noted that neither the state nor the federal government provides protections for sexual orientation or gender identity. Furthermore, the employment protections that are afforded are applicable only to those employers who have fifteen or more employees.
   
• City Ordinance No. 2011-25, Domestic Partnership Registry allows a registered domestic partner to be included in any rights and privileges accorded a spouse when using or accessing city facilities. It also allows for visitation of a patient at all health care facilities operating within the city. Since the implementation of this Ordinance, there have been four couples who have registered as domestic partners.
   
• City of Flagstaff employees are protected from job discrimination because of race, color, religion, gender, age, veteran’s status, citizenship, disability, national origin, or sexual orientation (City Ordinance No. 2013) Similar protections are also provided to employees of the federal government and Arizona state government including universities, and employees of Coconino County.

Policies:

• 1999: Council adopted Ordinance No. 2013 amending the city code pertaining to equal opportunity and affirmative action for city employees to add sexual orientation to the list of protected groups.
   
• 2006: Council adopted Resolution No. 2006-62 supporting active efforts to achieve the goal of inclusive communities.
   
• 2009: Council adopted Resolution No. 2009-12, affirming the city’s commitment to fair and equitable treatment of all persons regardless of their race, color, creed, religion, national origin, ancestry, disability, marital status, sex, gender identity or expression, sexual orientation, veteran's status, age familial status, and physical characteristics.
   
• 2011: Council adopted Ordinance No. 2011-25 which established a Domestic Partnership Registry.

Policy Choices:
If Council chooses to move forward with creating a Civil Rights Ordinance, there are several policy choices that will need to be decided before staff can begin the task of drafting a document that will then come back to Council for review and possible changes. As previously stated, four main policy questions are:

• Who is protected? The state and federal governments already provide protections on the basis of a person’s race, color, religion, national origin, sex, disability, pregnancy, familial status, age, veteran’s status, and genetic information in both public accommodation and for employers with 15 or more employees.
   
• Does Council want to add sexual orientation and gender identity to its list of protected classes?
   
• How will a new ordinance be enforced? The state Attorney General’s Office has many resources at its discretion to conduct investigations and resolve discrimination complaints received from citizens of Arizona, including those living in the City of Flagstaff. Flagstaff residents do not have to travel to Phoenix to file a complaint as they can be made electronically on the AG’s website. If Council chooses to extend coverage of current federal and state protected classes to employers with less than fifteen employees or adds sexual orientation and gender identity to the list of protected classes, the City of Flagstaff will be solely responsible for investigating and resolving any discrimination complaints it receives based upon this extension.

As you can see from the attached comparison chart of cities with a civil rights ordinance, all have designated an office within city government to receive and process discrimination complaints. In speaking with representatives in these three cities, I have learned that they do not attempt to duplicate the enforcement efforts already provided by the state and/or federal government. Simply put, they deal with only those additional protections created by their respective ordinances. Typically, they have designated a person or persons within their City Manager’s Office or Human Relations Division to oversee Equal Opportunity Programs and receive and process discrimination complaints. If established, an Office of Equal Opportunity Programs would use the resources at its disposal to investigate complaints and determine whether or not a complaint is valid. If there is a reasonable basis for the complaint, the Office of Equal Opportunity Programs could use mediation, conciliation, or persuasion to attempt to resolve the matter to the satisfaction of both parties.

If the Office of Equal Opportunity Programs is unable to resolve the complaint, it may be referred to the City Attorney’s Office for possible prosecution in Municipal Court.

Another option may be to use an outside Administrative Hearing Officer to attempt to resolve the complaint rather than rely on City staff. This person would only be used as necessary when an actual complaint is received and determined to have a reasonable basis. My understanding is that the three cities we have researched have not experienced a significant amount of discrimination complaints.

• The choices for Council to decide in the area of enforcement include:

             1) Designate city staff to be responsible for investigation and resolution of complaints.
             2) Hire an outside investigator and Administrative Hearing Officer.
             3) Create a private cause of action and refer complainants to court.

• What businesses and organizations will be covered? From the comparison chart you can see that between federal and state government, most employers are responsible to adhere to the law. The exception is for those employers with less than fifteen (15) employees.
   
• Does the Council desire to extend employment discrimination coverage to employers with less than fifteen employees?

The City of Flagstaff is preempted by state law from enacting any ordinance prohibiting discrimination in housing. One note to add is that the Arizona Civil Rights Act (ACRA) covers employers with one or more employees in cases of sexual harassment. Discrimination in public accommodation is already prohibited under federal and state law and is not dependent upon the number of employees a business has. However, these protections do not include sexual orientation and gender identity.

• Will there be exclusions? The City of Flagstaff does not have the authority to remove the exclusions already afforded under federal and state law. However, the City may choose to add other exclusions as it deems appropriate. An example is if the Council decided to cover employers with less than fifteen employees where currently they are excluded. As a reminder, federal and state governments, as well as their political sub-divisions like counties, universities, and community colleges are excluded from any civil rights ordinance enacted by the city. Moreover, Native American Tribes and their official offices located within the city limits are not subject to any civil rights ordinance of the city. Private clubs, religious organizations and expressive associations under the freedom of speech provisions of the First Amendment (e.g. Boy Scouts, etc.) are also excluded.
   
• Does the Council desire to grant any additional exclusions to an ordinance?

Next Steps: If Council chooses to create a Civil Rights Ordinance, staff will immediately begin to draft a document in accordance with the direction we have received. Once a new ordinance is drafted, it would be our intent to return it to Council as soon as possible for review and to receive any additional input.   
 
 
Public Outreach:   In addition to any public comment received by Council during Work Sessions and Meetings, it may decide to direct staff to conduct additional outreach to the community.  The following are some examples of groups or organizations we could solicit input from if so desired by Council: 

• Diversity Awareness Commission
• Chamber of Commerce
• Large businesses over 100 employees
• Faith based community
• ??? Other groups or organizations as determined by Council