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HomeMy WebLinkAboutMinutes - 19930914 V 1.~ 1 APPROVED 10/19/93 MINUTES ORANGE COUNTY BOARD OF COMMISSIONERS SPECIAL MEETING SEPTEMBER 14, 1993 The Orange County Board of Commissioners met in Special Session on Tuesday, September 14, 1993 at 7:30 p.m. for the purpose of holding a Public Hearing on the proposed Civil Rights Ordinance. COUNTY COMMISSIONERS PRESENT: Chair Moses Carey, Jr., and Commissioners Stephen H. Halkiotis, Alice M. Gordon, Verla C. Insko and Don Willhoit. COUNTY ATTORNEY PRESENT: Geoffrey Gledhill CHAPEL HILL TOWN COUNCIL PRESENT: Mayor Ken Brown, and council members Julie Andresen, Joe Herzenberg, Mark Chilton, and Joyce Brown. CARRBORO BOARD OF ALDERMEN PRESENT: Jacquelyn Gist. HILLSBOROUGH BOARD OF COMMISSIONERS PRESENT: Mayor Horace Johnson. COUNTY 8TAFF PRESENT: County Manager John M. Link, Jr., Assistant County Manager Albert Kittrell, Deputy Clerk to the Board Kathy Baker, Clerk to the Board Beverly A. Blythe, Director of the Commission for Women Lucy Lewis, Administrative Assistant Judy Messenheimer, Deputy Sheriff Archie Daniels and Public Works Director Wilbert McAdoo. The meeting was convened by Commissioner Carey at 7:30. He acknowledged the members of the Human Relations Commission for their many long hours of work on this proposed Ordinance and introduced the elected officials from the municipalities. PUBLIC CHARGE: Chair Carey read the public charge. He also listed the groundrules under which the meeting would be conducted. The Board of Commissioners office received six letters in support of this proposed Ordinance and one in opposition. PUBLIC HEARING ITEM: I. Proposed Civil Rights Ordinance Director of the Commission For Women Lucy Lewis gave a brief summary of the history of the Human Relations Commission and the Civil Rights Ordinance. She presented information on the key provisions of the proposed Ordinance, outlined the process for dealing with complaints, and discussed the key benefits to Orange County. She also mentioned concerns the Human Relations Commission members have heard prior to this Public Hearing. A copy of the charts for this presentation are in the permanent agenda file in the Clerk's office. County Attorney Geof Gledhill gave a lengthy presentation on the area of the proposed Ordinance which addresses "other prohibited discriminatory acts." He indicated that over 95~ of the issues addressed by the Ordinance would be in the area of housing and employment. Incidents that could be called "other prohibited discriminatory acts" will be the exception rather than the rule. GS14-401.14 states that "...if a person shall because of race, color, religion, nationality or country of origin, 2 assault another person...or threaten to do so he shall be guilty of a misdemeanor with a sentence of up to two years and a fine. He also commented that GS14-401-1.1 is the statute that lists punishments for felonies. GS14-401-3 states that if any misdemeanor offense with punishment less than a general misdemeanor is committed because of race, etc., the offender shall be guilty of a general misdemeanor. If a general misdemeanor offense is committed because of race, etc. , the offender shall be guilty of a Class J felony. It is the law in North Carolina that if you do commit crimes against protected classes and you are convicted you will be punished more severely than if the person you harmed was not in a protected class. If a threat is willfully communicated and made in a manner which would cause a reasonable person to believe that it will be carried out, a crime has been committed. He presented a 1871 case in which it was held that the defendants used language to intimidate the plaintiff. The judge stated that if the language used caused Plaintiff to change his/her course of action then Defendants were in violation of the law. It was important to note that guns and tools were present but were not used to intimidate. The law held that the threat was sufficient to hold the defendants guilty. It was held to be unlawful to speak words that incite an immediate breach of the peace. The proposed Ordinance cause this type of speech to be in violation of the law. It is illegal to perform any act that indirectly or directly results in personal or property damage. The last section of the proposed Ordinance says that no person shall be found to have violated this Ordinance by the content of the speech. It is the act, not the content of the speech, that would cause violation of the Ordinance. There have been statements in the paper that the Ordinance is unconstitutional because it violates the freedom of speech section of the Bill of Rights. Gledhill stated that the "freedom of speech" referred to in the first amendment does not give freedom to disregard the basic rights of others. Speech which is not protected is that which has such slight social value as to not be worthy of protection. "Fighting words" are not protected. If the words are likely to provoke a fight, they are not protected. It is the words themselves that are being regulated because they themselves provoke the fight. The Court has commented that with certain words the goal is not to communicate an idea; it is meant to intimidate the person. Gledhill mentioned another case in which the city of St. Paul made unlawful particular words that insult or provoke violence on the basis of race or color. They decided that the placing of symbols was a violation of civil rights. An Ordinance was passed which made it unlawful to place certain symbols on property within the city limits. A court of law decided that this Ordinance was not legal. Orange County staff has studied and researched this issue so that the proposed Ordinance will meet constitutional criteria. Justice Scalia has clearly defined what would or would not pass the constitutionality test. This Ordinance addresses not what is said, but rather whether or not "fighting words" are directed at a person from a protected class. In a recent NC Court of Appeals case involving Dr. Kaplan, an OB-GYN physician who was performing abortions, the defendants were alleged to have carried out activities designed to prevent him from performing abortions, including threats to his life. An injunction was issued which ordered the defendants to cease all 3 communication of threats and personal confrontation. The defendants appealed this as a First Amendment case. The Court of Appeals stated that only the hostile method of delivery, not the content of the message, can be regulated. Gledhill stated that the Orange County efforts followed the course set out by Justice Scalia. QUESTIONS AND COMMENTS FROM THE BOARD OF COMMISSIONERS OR OTHER ELECTED OFFICIALS Council member Andresen asked for clarification on the questions listed below: 1) How many cases are expected to be handled yearly? 2) How many are likely to result in penalties and/or be appealed? What is the financial impact of this Ordinance? 3) How many citizens have appealed Commission rulings? 4) What are the roles of staff and volunteers? 5) What information did the Commission gather during the public hearings about complaints directed at public accommodation and/or employment discrimination? 6) How many businesses would be affected by this Ordinance in the county outside of the municipalities? Andresen indicated that reliance on the dispute resolution process as well as improved access for citizens which would result from the adoption of this Ordinance are commendable. Lewis indicated the scope of the financial impact would be decided by the elected officials. However, federal compensation partially offsets the cost to local communities. Orange County could expect to have between three and twelve cases actually go before an Administrative Law Judge within any given year. She indicated that approximately one hundred fifty (150) employers, employing 15,000 people would be covered under Orange County's jurisdiction. New Hanover County has been pleased with the effect the Ordinance has had in their community. They believe that this is good for both employees and businesses. New Hanover County and its Chamber of Commerce co-host an annual Fair Employment Workshop which greatly helps employers understand the changing laws. They co-host an annual Fair Housing Workshop with the Personnel Director's Association which includes the personnel directors of all major employers. Orange County staff would work closely with Commission members during reasonable cause hearings, however the Commission members would actually be responsible for the hearing. The intake and investigation process would be handled by a trained staff person. There is excellent training available for Commission members. The sections dealing with public accommodations and hate violence complaints would have lesser impact. Training sessions would be made available for both small and larger business in order to inform them of the implications of the Ordinance. Council member Herzenberg asked why county government is exempted from the Ordinance. Gledhill indicated that it is impractical, if not impossible, for the County to police itself. 4 Council member Capowski asked if the school systems would be covered. Gledhill indicated that he was reasonably certain that they were not considered subdivisions of the State and therefore would be covered. He indicated that he would research this issue to determine if this is a correct interpretation. Lewis indicated that if someone had a complaint the first step would be to contact the Commission. At that time they could fill out a form which would empower the Human Relations Commission's staff to perform an initial investigation. Normally, informal mediation would resolve the situation; however, if that is not successful, both parties would be encouraged to sit down in an attempt to mediate the problem. Many cases are resolved at this level. If that process was not successful then it would go forward to the panel. Conciliation would again be attempted. New Hanover has had only 10 cases that have gone past this stage in the last 13 years. If the County adopts this Ordinance it would be with the hope that the municipalities would hold similar Public Hearings and adopt the same Ordinance. Carrboro Board member Jacquelyn Gist complimented the Commission on the work they have done. She asked that the section pertaining to words be dropped because she feels that this is not enforceable. She expressed disappointment that the sexual orientation section was deleted. THE PUBLIC HEARING WAS OPEN FOR CITIZEN QUESTIONS: George Chockley, a Cedar Grove resident, asked if the proposed Ordinance would protect only people over 40. Gledhill indicated that federal laws target those 40 years old and over as a protected class. In response to a question from an unidentified citizen, Mark Sheridan indicated that the Commission will have subpoena power, however, they will not be empowered to add anything to the Ordinance. The State Legislature must pass enabling Legislation in order to add protected classes. Richard Hammer asked how many of the 150 employers with over 15 employees were located within the municipalities. Lewis indicated that most of them were within the city limits. Victor Tripp questioned why the County is exempt from this Ordinance and not from any other County Ordinances. Commissioner Carey indicated that it is a practical problem of policing. County employees have other avenues of protection available to them. Billy Smith indicated that he opposed the use of County tax money for an Ordinance that will not apply within the municipalities. Josephine Barber, an Orange Count resident, asked for a complete accounting of the cost of staffing this Commission as it currently operates. She also asked for a proposed budget assuming that the Ordinance passed, including how many people would be employed. She also requested an accounting of where the money would come from. 5 PRESENTATIONS FROM STAFF OF HUMAN RELATIONS COMMISSIONS IN NORTH CAROLINA Danny Addison, Assistant Director of the North Carolina Human Relations Commission, stated that his organization performs on the state level duties similar to those of the local Commissions. They also work closely with the local Commissions to help establish and enforce local Civil Rights Ordinances. The State Commission strongly urges passage of these Ordinances at the local level. Although the Fair Housing Act is enforced by the State, if a citizen can call a local office they will much more likely seek assistance. Investigations are more thorough at the local level. It is much more likely that complaints will be resolved through the face-to-face negotiations held at the local level. If enforcement is deemed to be necessary, there is less expense and time involved when a county Human Relations Commission is involved. Philosophically it is important for the community to make its own statement in support of civil rights by passing a local law. Most of the civil rights Ordinances are very workable. The community is not sacrificing anything by passage of the Ordinance. Extensive training is made available by the State and Federal government. Bill Jessup, Executive Director of the New Hanover Human Relations Commission, stated that in 1979 the City Council adopted New Hanover County's ordinance. The feeling in the community is that this has been good for the employment claimant. The main emphasis needs to be on the service that the Commission can offer the community. The primary benefit to the community is not the enforcement at the local level although that is an important component. The real local benefit is the education and support that the Commission offers. Often employers call requesting help in making sure that they are not inadvertently breaking the law. Some examples of areas in which the New Hanover Commission has been able to help employers is in choosing employment applications and in wording housing advertisements so that they comply with the Fair Employment and Housing Amendments. THE PUBLIC HEARING WAS OPEN FOR COMMENT AND QUESTIONS FROM CITIZENS Jean Bolduc, past Chair of the Human Relations Commission, spoke in favor of the proposed Ordinance. She indicated that the Commission has not solicited and tracked complaints because they felt it would be an empty gesture without an Ordinance in place. The Public Hearings which were held in 1988 clearly established the fact that many Orange County citizens face daily discrimination. Ann Johnson, a member of the Orange Commission for Women, spoke in support of this Ordinance. She addressed the issue of discrimination against older adults. As a professional in the field of aging for the past 26 years and as a volunteer on a national committee on employment for older adults she reported on an increasing feeling of hopelessness within that population. Older Americans often feel that there is not a present or a future. North Carolina has a higher poverty rate for the elderly than the nation at large. Twenty-eight (28~) of our older populations live alone 6 on minimal social security benefits. The ordinance provides for the possibility of a user friendly atmosphere. James Brittain, a member of the Chapel Hill/Carrboro branch of the NAACP, indicated that the move for a Civil Rights Ordinance began in 1964. The Chapel Hill Council initiated a proposal which established a special agency with full time staff and a governing board to deal with a variety of racial problems. Now Twenty-nine years later the community is still debating, discussing and studying. Responsible action needs to be taken now. Mattie Rose Crowder spoke in opposition to this ordinance. She believes that residents of the unincorporated area will be denied freedom of speech. She commented that it appears to be intentionally nebulous in order to give excessive latitude to those interpreting the Ordinance. Earl Davis spoke in opposition to this Ordinance. It appears to be aimed directly at rural Orange County residents. He indicated that he believed the ulterior motive behind this Ordinance is to keep new business out of Orange County. He reminded the Commissioners of the story of the Regulators and the Battle of Alamance where citizens told the Governor they would pay no taxes or obey unjust laws. Robin Stanford Mulkey, an Orange County native, spoke in opposition to this Ordinance. She believes it puts too much power in the hands of a volunteer commission. It would afford too many opportunities for the mismanagement of power. These types of issues need to be handled by judicial authority, not quasi-judicial. Katherine Dickman, Director of the Women's Center, spoke in support of this Ordinance. She spoke about the discrimination in the area of housing which many women deal with consistently in Orange County. It is only through mutual understanding and fair treatment that we can build a community free of tension. A copy of her statement in its entirety is in the permanent agenda file in the Clerk's office. Adam Stein, an attorney licensed in North Carolina, has represented victims of discrimination in both local and State Supreme Courts. He commends the Commission for its work. As a representative of the American Civil Liberties Union he spoke against the "Other protected Classes" portion of the Ordinance. It is his opinion that it is in violation of the law. He commented that the Ordinance is unconstitutional because it is too broad. He believed that Martin Luther King could be in violation of this Ordinance for statements that he made about continuing to resist until the discrimination was overcome. He asked that the portion pertaining to "words" be deleted. Oliver Melvin, a Compliance Specialist with the Durham Human Relations Commission, spoke in support of this Ordinance. He indicated that when people perceive discrimination, a problem exists whether or not discrimination has actually occurred. Over 90~ of the cases they receive are resolved at the administrative level. In the remaining 10~, discrimination had occurred. He related the story of the terminated employee who felt sure he had been discriminated against and threatened the life of his ex-employer. A possible tragedy was averted when they warned the employer, alerted the police and recommended counseling for the employee. Nate Davis, current Chair of the Human Relations Commission, spoke in support of the adoption of the Civil Rights Ordinance for Orange County. Discrimination exists in Orange County. He personally has experienced it on numerous occasions as have many, many other residents. It is time to move forward and pass this Ordinance. Ruth Black, an Orange County resident, spoke in favor of the adoption of this Ordinance. A letter of support from Ms. Black is in the permanent agenda file in the Clerk's office. Mark Ginsberg, a resident of Efland, spoke in support of the adoption of this Ordinance. He particularly supports the educational component and the opportunities for equal access. He expressed disappointment regarding the deletion of protection for sexual orientation. Rev. Gary Webb, a pastor in Carrboro, spoke in opposition to the passage of this Ordinance. He felt that this Ordinance would give the commission too much power. This one commission would have judicial and executive powers which would allow them to subpoena and investigate citizens. He feels they would operate as a branch of government without proper controls and that a committee of volunteers would be ill equipped to handle this responsibility. Odessa Cotton, an Orange County resident, spoke in support of the adoption of this Ordinance. This is the time to act. Kathleen Barber spoke against the adoption of this Ordinance. She indicated that it would negatively impact their right to free speech. This is an unconstitutional Ordinance. If this Ordinance is adopted she asked that Article 7 be considered for deletion prior to adoption. Judy Woodall, a business owner and Chapel Hill resident, spoke in support of the Ordinance. She indicated that the employment section would be a benefit to her as a business owner. It will be helpful to businesses to have a commission available to answer questions and educate them about changing employment laws. The federal laws addressing discrimination in employment and housing are often difficult to understand and therefore to properly interpret. Having a local volunteer commission with a level of knowledge such as this one would greatly benefit local employers. George Allison, Chair of the Northern Orange NAACP, spoke in favor of the Ordinance. He stated that this will help ensure that the class of 2006 will have a better opportunity for equal rights. 8 Amy Tattersall, a Cheeks Township resident and a member of the Commission for Women, spoke in support of this Ordinance. It is in the best interest of the community to have local citizens hearing complaints. In response to an earlier question it was determined that the cost of staffing this commission is approximately $10,000 a year. Linda Carver, a resident and member of the Commission for Women, spoke in favor of the passage of this Ordinance. Betty Ibrahim spoke in opposition to the passage of this Ordinance. The Ordinance would give board new power to a group of citizens who have not been elected. She asked for further documentation of discrimination in the County. Johnny Kennedy, an Orange County resident, spoke against the adoption of this Ordinance. He asked that the Board of Commissioners postpone the adoption of this Ordinance. He believes that another Public Hearing needs to be held at which time presentations by those opposing this Ordinance could be heard. Rev. Tim Kimrey, the first Chair of the Human Relations Commission, stated that without a doubt there is discrimination in Orange County. He urged the adoption of the Ordinance by both the County and the municipalities. It will not solve the problem but it is the right thing to do. John Hartwell, an Orange County resident, spoke in favor of this Ordinance. It does not .intend to make anything illegal that is not already illegal under either State or Federal law. Its purpose is to provide an enforcement pattern by conference, conciliation or persuasion. Other communities do have similar ordinances. He pointed out that the type of speech that is covered by this Ordinance is not just "hateful speech". It is speech that is intended to lead to imminent violent action. Philip Knight spoke in opposition to the passage of this Ordinance. He particularly opposed Article 7. He believes that the Commission would be taking on Judicial and Executive roles without proper controls. He felt that the Ordinance could be changed without citizen's knowledge at a later time. Richard Hammer, an Orange County resident, spoke in opposition to the passage of this Ordinance. He indicated that the only precincts that will be actually covered did not elect any of the Commissioners. He requested that a referendum for citizens in the rural communities be held. Commissioner Willhoit indicated that the rural precincts did, in fact, vote to elect Commissioners who serve on the Board at the present time. Keith Cook, a resident of Cedar Grove Township, spoke in support of the adoption of this Ordinance. Orange County has been listed as one of the 9 top 10 counties in the incidence of hate crimes in North Carolina. Many incidence of discrimination occur in this County. They are not reported because of perceived difficulties in reporting to the State and Federal agencies. This Ordinance will not violate our constitutional rights and it will make it possible to deal with issues of discrimination locally. Response time will be shortened by having a local Ordinance and when enforcement is necessary, it will be handled much more effectively at the local level. George Chockley spoke in opposition to the passage of this Ordinance. This proposal has put unnecessary stress on all citizens in Orange County. He is not against an ordinance, however, this one is flawed. He believes that it discriminates against the rural county residents. It is a violation of freedom of speech. James Smith spoke against the passage of this Ordinance. The potential for abuse is great here. He felt that this Ordinance duplicates Federal laws and is therefore unnecessary. It will place an undue burden on small businesses. He suggested that a referendum be held before passing the Ordinance. George Allison, a citizen and President of Northern Orange NAACP, spoke in favor of the passage of this proposed Ordinance. The vision for the future must consist of growth. He feels they must have a way of solving problems because problems always come with growth. He indicated that he has often met with employers and employees in an attempt to mediate situations where discrimination was perceived to have occurred. Ruth Long, an Orange County resident, spoke in support of the adoption of this Ordinance. Gwyn Jones, an Orange. County resident and one of the original members of the Commission, spoke in favor of adoption of this Ordinance. It only addresses that which citizens are already guaranteed. She requested that "status with regard to source of lawful income" be returned to the Ordinance. Many times low income residents are not allowed to live in housing of their choice because of the source of their income. For example, women who receive Aid For Dependent Children often are discriminated against because of the source of their income. Joyce Roland, an Orange County resident, spoke in support of the passage of this Ordinance. She indicated that many older women need this protection in their community. They are not in a position to take complaints to Raleigh. Victor Tripp spoke in opposition to the adoption of this Ordinance. He stated that he was concerned that his religious beliefs might cause a breach of the peace. Rev. David Bolick of Schley spoke in opposition to the adoption of this Ordinance. He felt that this Ordinance would prohibit him from freely preaching the scripture. 10 Don Smith, an Orange County resident, spoke in favor of the adoption of this Ordinance. He commented that the portion covering "Other prohibited discriminatory acts" seems to be the only controversial part of this Ordinance. He suggested it be deleted and that the remainder of the Ordinance be adopted. Sharon Worthington, a Orange County resident and member of the local chapter of the National Organization for Women, indicated that NOW is in support of this Ordinance. A copy of her comments are in the permanent agenda file in the Clerk's office. ADJOURNMENT: There being no further comments, the Public Hearing was closed. Written comment will be accepted until this Ordinance is returned to the Board of Commissioners' meeting on October 19, 1993. Moses Carey, Chair Kathy Baker, Deputy Clerk