Tuesday, May 21, 2013

‘Star chamber’ Human Rights Commission passes

Star Chamber – an English law court, abolished in 1641, that included members of the monarch’s privy council and considered cases without a jury or other procedures of common-law court. Any tribunal or committee that acts in an arbitrary or unfair manner.

Charlottesville, Va. – The 5-member City Council passed in a 3-to-1 vote the so-called Human Rights Commission at 10:40 p.m. Monday. Something doesn’t add up. Mayor Satyendra Huja abstained while he said on WINA this morning (replayed this afternoon) that he opposes the commission.

Without enforcement powers, what would have been an illegal court answerable only to Council is now a secret grand jury that settles cases and refers cases to the City Attorney for prosecution in a legitimate court.

The ordinance was not ready for prime time. Many changes were made at the last minute and approved “as amended.” So they have to pass it so we can see what’s in it. The ordinance was not in the Agenda materials, where the Comprehensive Plan ordinance was duplicated. The April 15 version is available at the city website in the list of Agendas and reproduced below.

What does the ordinance really mean? Anything you want it to. The language is vague and contradictory. The 6 protected groups are expanded to at least 13 classes for preferential treatment.

(1) Race
(2) Color
(3) Religion
(4) Sex
(5) Pregnancy
(6) Childbirth or related medical conditions
(7) National origin
(8) Age
(9) Marital status
(10)  Disability
(11)  Gender identity
(12)  Transgender status
(13)  Sexual orientation

Each classification is vague. The ordinance does not spell out which race is to be favored and which is to be discriminated against. So there’s plenty of room for interpretation and unintended consequences.

At least one speaker brought up illegalities and how Councilors were violating their oath to uphold the law. City Attorney Craig Brown mistakenly said a case would have to come through for the ordinance to be tested in court. We know this is not true because the panhandling ordinance went to court while no citation has ever been issued. But if it were to be true, that would be arbitrary enforcement of the rules, the definition of a Star Chamber.

Brandon Collins brought up the star-chamber analogy. Later Councilor Dave Norris, opponent of due process civil rights by supporting public housing urban renewal, reassured the public that this star-chamber commission is not a star chamber. City Council is a star chamber!

The cost per secret, confidential investigation is $3,000. City Manger Maurice Jones estimates 17 cases per year. So that’s $51,000. Plus one or two “objective, neutral third party qualified to assess allegations of discriminatory conduct” as defined in the ordinance. That’s another $200,000 a year.

But the ordinance does not actually define “discrimination.” There would be 9 members including a director. Norris asked if the commission could split up into sub-commissions. The answer was yes. That’s not in the April 15 version.

City of Promise – City of Betrayal

Change is coming to 8th St. NW and Hardy Drive next to the 1964 Westhaven public housing complex, named for John West, a black real estate speculator who owned and built Vinegar Hill after the Civil War when blacks outnumbered whites locally. Westhaven is the replacement housing for those displaced by urban renewal of Vinegar Hill.

The biggest news is not about the detailed plans, or Habitat for Humanity and the City swapping land back and forth like they don’t know what they’re doing, or that Piedmont Housing Alliance is no longer the middle man. The news is not the City owns 202 and 206 8th NW, Habitat 204 and 210, and Silk Purse Properties, LLC owns 208.

The big news is that Charlottesville’s Online Real Estate Records no longer contain the legal name of the property. The legal name is actually a number – the number of a Deed Book and Page that describes the legal owner and parcel of property. So the website “upgrade” is a major step backwards for transparency and open government.

Charlottesville Online Real Estate  http://gisweb.charlottesville.org/GISViewer/

And the map doesn’t work. That’s no big surprise. I started watching Council at 7:35 and stopped at 10:40. So this scheme to spend money, erect an exercise building at 210 with green space at 206 separated by Silk Purse just so they can be located close to the target neighborhood? Why can’t they have an office in the Westhaven community center across the street?

They’ve already spent $30,000 for final architectural plans. So they’re pretty certain the other $270,000 will be forthcoming. That’s because we’re swimming in money. There’s no recession in City Hall. The item was scheduled for the late-night meeting.

Council Agenda May 20, 2013 with background materials.

Video of May 20, 2013 City Council meeting.

[PENDING VERSION – With Amendments proposed by Kristin Szakos, and as modified by City Council on April 15, 2013]
( http://www.charlottesville.org/Modules/ShowDocument.aspx?documentid=25639 )


BE IT ORDAINED by the Council for the City of Charlottesville, Virginia that Chapter 2 of the Code of the City of Charlottesville (1990), as amended, is hereby amended and reordained by adding a new Article XV entitled Human Rights, which Article shall read as follows:

Article XV. Human Rights

Sec. 2-430. Short title.
This Article shall be known and referred to as the Charlottesville Human Rights Ordinance.

Sec. 2-431. Unlawful discrimination prohibited.
(a) It shall be unlawful and a violation of this article for any person, partnership, corporation or other entity to engage in discrimination in housing, employment, public accommodations, credit, and education on the basis of race, color, religion, sex, pregnancy, childbirth or related medical conditions, national origin, age, marital status or disability.
(b) As used herein, the term “discrimination on the basis of sex” is defined to include, but not be limited to, discrimination on the basis of gender identity, transgender status or sexual orientation.
(c) As used herein, the term “unlawful discriminatory practice” includes conduct in violation of any comparable Virginia or federal statute or regulation governing unlawful discrimination.

Sec. 2-432. Human Rights Commission.
(a) There is hereby created in the City of Charlottesville a Human Rights Commission, consisting of no less than nine members appointed by the City Council. The Commission membership shall be broadly representative of the City’s population, with consideration of racial, gender (including gender identity, transgender status, and sexual orientation), religious, ethnic, disabled, socio-economic, geographic neighborhood and age groups within the City. Of the members first appointed, at least three shall be appointed for terms of three years, at least three shall be appointed for terms of two years, and at least three shall be appointed for terms of one year. Thereafter members shall be appointed for terms of three years each. Any vacancy shall be filled by the City Council for the unexpired portion of a term. Following notice to the member, any member of the Commission may be removed for good cause by a majority vote of City Council.
(b) The Commission shall elect from its members a chair, a vice-chair, and such other 2 officers as the Commission may deem appropriate. The Commission may also adopt rules and procedures to govern the conduct of its affairs.
(c) Members of the Commission shall serve without compensation, but funds may be appropriated in the City’s annual budget for reasonable and necessary expenses to be incurred by Commission in the conduct of its prescribed functions.
(d) All meetings of the Commission shall be advertised in advance and in the manner required by law, and shall be open to the public except for meetings lawfully closed pursuant to the Virginia Freedom of Information Act. At the beginning and at the end of each of its public meetings the Commission will receive public comment in accordance with City Council’s “Rules for Public Participation”.
(e) The Commission may, in its discretion, delegate any of its duties or responsibilities hereunder to a panel of not less than three Commissioners.
(f) There shall be a full-time Director of the Commission, who shall be appointed by the City Manager with the advice and consent of the Commission and who shall serve full time in that capacity. The Director will be responsible for and report to the Commission in the day-today operational conduct of the Commission’s activities. The Director shall report directly to the City Manager for administrative and fiscal matters. The City Manager shall delegate to the Director the authority to employ such additional staff as authorized and funded by the City Council, in order for the Commission to fulfill effectively its obligations under this Ordinance.
(g) All City departments, boards and commissions shall cooperate with and provide assistance to the Commission, including the provision of information in response to reasonable requests from the Commission.
(h) Legal counsel shall be provided to the Commission and its staff through the Office of the City Attorney. The City Council may authorize retention of outside counsel where deemed appropriate upon recommendation of the City Attorney.

Sec. 2-433. Role of the Human Rights Commission.
The role of the Human Rights Commission is to act as a strong advocate for justice and
equal opportunity by providing citywide leadership and guidance in the area of civil rights. The Commission will:
(a) Identify and review policies and practices of the City of Charlottesville and its boards and commissions and other public agencies within the City and advise those bodies on issues related to human rights issues;
(b) Collaborate with the public and private sectors for the purpose of providing awareness, education and guidance on methods to prevent and eliminate discrimination citywide;
(c) Assist individuals who believe they are the victim of an act of unlawful discrimination within the City;
(d) Make recommendations regarding the City’s annual legislative program, with an emphasis on enabling legislation that may be needed to implement programs and policies that will address discrimination;
Sec. 2-434. Duties and responsibilities – Investigation of individual complaints and issuance of findings.
(a) The Director will develop and implement a central intake mechanism for receiving and processing individual complaints that allege an unlawful discriminatory practice in the City. The Director or other designated professional staff will conduct, as authorized by this ordinance, fact-finding, mediation, conciliation, and, if necessary, full investigation of the complaint
(b) In cases where investigation and remediation are already available in the City, such as employment discrimination complaints within the jurisdiction of the Equal Employment Opportunity Commission (“EEOC”) or fair housing complaints addressed by the Piedmont Housing Alliance, the complaint will be referred to that agency so that investigation and enforcement may be initiated by those bodies, which will offer services in the City and, to the extent allowed by law, report their findings to the Commission.
(c) For all other complaints alleging an unlawful discriminatory practice as defined herein, the Director shall thereafter conduct such investigation as he or she deems appropriate to ascertain the facts underlying the charge of discrimination, provided that the complaint may be dismissed by the Director without investigation if it fails to adequately allege a violation of this ordinance or is otherwise deficient on its face. If the complaint is not dismissed the Director will serve a copy on each respondent named therein. Upon completion of the initial investigation, the Director shall render a written determination of whether there is probable cause to believe a violation of this ordinance has occurred, and the facts supporting such determination. The written determination shall promptly be served on the parties.
(d) If the Director determines that there is probable cause to believe a violation has occurred, the Director will propose an initial meeting between the parties for the purpose of exploring a resolution of the complaint through voluntary mediation or other informal means. Nothing herein shall be interpreted as requiring any party to participate in mediation or any other conciliatory efforts.
(e) If the mediation or conciliation is concluded to the satisfaction of both parties, the complaint will be considered resolved upon the parties’ execution of a written conciliation or settlement agreement. No further action on the initial complaint will be taken by the Commission or its staff once the agreement is executed. If mediation or conciliation is not successful, the Director or designee may conduct further investigation or, if further investigation is not warranted, either dismiss the complaint as not constituting a violation or proceed with the preparation of materials for consideration by the Commission, as provided in section 2-439.1 (b).
(f) In order to fulfill the requirements of this section, the City Manager is authorized to contract on behalf of the City with any objective, neutral third party qualified to assess allegations of discriminatory conduct as prohibited in section 2-431, for the purpose of receiving complaints, conducting investigations, rendering written determinations of whether there is probable cause to believe a violation of this ordinance has occurred, conducting mediations or conciliations of complaints and advising the Director of the Commission of the results of any investigation, mediation or conciliation of complaints.
Sec. 2-435. Duties and responsibilities – Systemic issues.
(a) The Commission will be responsible for identifying and reviewing policies, practices  and systems of an institutional nature that:
(1) May be unlawful discriminatory practices; or,
(2) May not constitute unlawful discriminatory be practices but nevertheless which produce disparities that adversely impact affect individuals on the basis of a status such as their race, color, religion, sex, pregnancy, childbirth or related medical conditions, national origin, age, marital status, criminal record, income or disability.
(b) Any review undertaken pursuant to this section may be initiated at the request of any other public or private entity, or by the Commission on its own initiative.
(c) The Commission may conduct its own research and review of existing studies and literature, collaborate with other research organizations, organize public focus groups and hold such hearings as may be necessary to identify policies, practices and systems as referenced in (a), above. For each such identified policy, practice or system, the goal of the Commission will be to formulate recommendations and to propose concrete, actionable reforms that will eliminate discriminatory practices or the adverse effects of lawful other practices.

Sec. 2-436. Reserved.

Sec. 2-437. Duties and responsibilities – Community dialogue and engagement.
(a) The Commission will serve as a forum for the discussion of human rights issues, and be responsible for conducting ongoing efforts to engage community members in an open, honest and creative dialogue regarding issues of equity and opportunity, including but not limited to issues considered by the City’s Dialogue on Race initiative.
(b) The Commission may conduct or engage in educational and informational programs for the promotion of mutual understanding, reconciliation and respect between all classes of individuals protected by this ordinance and the larger Charlottesville community.

Sec. 2-438. Reserved.

Sec. 2-439.1. Enforcement authority – The role of the Commission.
(a) If the Director determines that there is insufficient probable cause to believe a violation of this ordinance has occurred, the Director shall dismiss the complaint and advise the complainant in writing that such dismissal shall become final unless, within ten (10) business days of receipt of notice of the dismissal, the complainant files with the Commission a request for a review of the determination of the Director. On written petition of the complainant the Commission may review the Director’s conclusion, and may either overrule or affirm the finding of no probable cause. The parties may submit such additional information as they desire for the Commission’s consideration. If the Commission determines that probable cause exists, it shall direct the Director to continue the investigation or proceed with conciliation efforts.
(b) If the Director determines that probable cause to believe a violation did occur and the responding party declines to participate in mediation or other informal means of resolving the complaint, or if such efforts are attempted but unsuccessful, the Director shall prepare a written 5 summary of the evidence on which the determination of probable cause is based, and shall recommend appropriate remedies for the discriminatory actions in a report to the Commission. The Commission shall determine by majority vote whether to hold a public hearing on the complaint. The Commission shall base its determination on its judgment as to how enforcement of this ordinance would be best served. If the Commission determines not to hold a public hearing, it shall either dismiss the complaint or take such action as it deems appropriate and consistent with the purposes of this ordinance and the powers of the Commission hereunder.
(c) If a hearing is to be held, the Commission shall promptly notify the parties of the time, date and location of the hearing and serve upon them a statement of the charges against the respondent, the Director’s summary of the evidence and recommended remedies, and the issues to be considered at the hearing. The Commission will have the option to consider all of the allegations and issues set forth in the complaint or, in its discretion, may limit the scope of the hearing to one or more of the allegations or issues. The notice and statement shall be served no later than 14 days prior to the date of the hearing. Hearings of the Commission may be held before the entire Commission or before designated hearing panels, consisting of three or more members of the Commission, as the Commission in its discretion may determine. The Chair or a Commissioner designated by the Chair shall preside over the public hearing, which shall be open to the public.
(d) Whenever the Commission has reasonable cause to believe that any person has engaged in or is engaging in any unlawful discriminatory practice, and the Commission, after a good faith effort to obtain the data and information necessary to determine whether a violation has occurred, has been unable to obtain such information, it may request the City Attorney to apply to the judge of the circuit court of the jurisdiction in which the respondent resides or is doing business for a subpoena duces tecum against any person refusing to produce such data and information. The judge of the court, upon good cause shown, may cause the subpoena to be issued. Any person failing to comply with such subpoena shall be subject to punishment for contempt by the court issuing the subpoena. For purposes of this section, “person” includes any individual, partnership, corporation, association, legal representative, mutual company, joint stock company, trust, unincorporated organization, employee, employer, employment agency, labor organization, joint labor-management committee, or an agent thereof.
(e) In cases to be heard by the Commission the complainant and the responding parties shall be entitled:
(1) To file written statements or arguments with the Commission prior to the hearing;
(2) To be represented by privately retained counsel of his or her choice;
(3) To present his or her case or defense by oral or documentary evidence, to be given under oath or by affirmation;
(4) To submit rebuttal evidence; and
(5) To conduct such cross-examination as may be required for a full and true disclosure of the facts. Any oral or documentary evidence may be received, but the Commission as a matter of policy shall provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence. The Commission shall not be bound by the strict rules of evidence prevailing in the courts of law or equity.
(f) The Director shall be responsible for assuring the development of the evidentiary record before the Commission and may introduce evidence, examine or cross-examine witnesses, or make argument if he or she deems it advisable in order to fully apprise the Commission of the facts or the applicable law. The Commission shall keep a full record of the hearing, which record shall be public and open to inspection by any person unless otherwise provided by any applicable law or regulations. Any party may request that the Commission furnish such party a copy of the hearing record and shall reimburse the Commission for the cost of producing the copy. In matters where any party is represented by counsel, the office of the City Attorney shall provide an attorney as counsel to the Commission who will also assist the Director in preparing the case.
(g) If, after the hearing, the Commission determines by a preponderance of the evidence that the respondent has committed or is committing the alleged violation(s) of this ordinance, the Commission shall state its findings and may issue recommendations, to be served promptly on the parties, which recommendations may include notice to the respondent to cease and desist from such violation(s) and to take such action as may be authorized by law to effectuate the purpose of this ordinance, including but not limited to the payment by respondent of compensatory damages to any person or persons found by the Commission to be so entitled by reason of the violation(s) of this ordinance, or the placement or restoration of any person in or to such status in which the Commission finds he or she would be but for respondent's violation(s) of this ordinance.
(h) If, after receiving the evidence presented at the hearing, the Commission finds that the respondent has not engaged in the alleged violation(s) of this ordinance, the Commission shall state its findings and shall dismiss the complaint. Prompt notice of such action shall be given to the parties.
(i) Nothing herein shall be construed as authorizing the Commission to issue subpoenas, award damages or grant injunctive relief.

Sec. 2-439.2. Enforcement authority – Court enforcement.
(a) If the Commission finds that a respondent has committed a violation of this ordinance and determines that appropriate remedial measures have not been taken, the Commission, through the City Attorney, and subject to approval by the City Council, may file an appropriate action in any court of competent jurisdiction to prove, de novo, that the respondent violated this chapter; secure compliance with this chapter; and/or obtain appropriate relief available under any applicable federal or state statute or regulation including, but not limited to an award of injunctive relief, compensatory and / or punitive damages and a recovery of costs and attorney's fees for any person, including the City, injured as a result of a violation of this chapter.
(b) If the City Council approves the institution of any proceeding in court, the proceeding shall be brought in the name of the City Council and the Human Rights Commission of the City of Charlottesville.

Sec. 2-440. Confidentiality.
It shall be unlawful for any Commissioner, officer, employee, contractor or staff member of the Commission to disclose or make public any complaints, investigative notes, or other correspondence and information furnished to the Commission or its staff in confidence with respect to a complaint, an investigation or conciliation process involving an alleged unlawful discriminatory practice.

Sec. 2-441. Annual Report.
The Commission shall make an annual comprehensive report to City Council that outlines its efforts during the preceding year in the areas of identifying and addressing systemic or institutional discrimination; processing individual complaints of unlawful discrimination; and facilitating a community dialogue regarding issues of human rights. The report shall also outline the Commission’s work plan for the ensuing year, which shall be subject to approval or modification by City Council.

Sec. 2-442. Severability.
The provisions of the Article are severable; and if any provision, sentence, clause, section or part thereof is held illegal, invalid, unconstitutional or inapplicable to any person or circumstance, such illegality, invalidity, unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, sentences, clauses, sections or parts of this Article, or their application to other persons or circumstances. It is hereby declared to be the legislative intent that this Article would have been adopted if such illegal, invalid or unconstitutional provision, sentence, clause, section or part had not been included therein, and if the person or circumstances to which the chapter or any part thereof is inapplicable had been specifically exempted therefrom.

Sec. 2-443. Reserved.


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