01-040-O

ORDINANCE NO. __________

AN ORDINANCE TO CREATE A NEW CHAPTER 29C FOR THE DULUTH CITY CODE, 1959, AS AMENDED, PERTAINING TO HUMAN RIGHTS; ESTABLISHING A DULUTH HUMAN RIGHTS COMMISSION; PROHIBITING CERTAIN DISCRIMINATION IN CONNECTION WITH CREDIT, EDUCATION, EMPLOYMENT, PUBLIC ACCOMMODATIONS, PUBLIC SERVICES, AND HOUSING AND REAL PROPERTY, BECAUSE OF RACE, COLOR, CREED, RELIGION, NATIONAL ORIGIN, AGE, SEX, SEXUAL ORIENTATION, MARITAL STATUS, STATUS WITH RESPECT TO PUBLIC ASSISTANCE, DISABILITY AND FAMILIAL STATUS.

BY ALL CITY COUNCILORS:

The city of Duluth does ordain:

        Section 1.     That a new Chapter 29C be added to the Duluth City Code, 1959, as amended, to provide as follows:

CHAPTER 29C.
HUMAN RIGHTS.
Article I.

Sec. 29C-1.     Declaration of policy and purpose.

        The city council of the city of Duluth finds that discrimination because of race, color, creed, religion, national origin, age, sex, sexual orientation, marital status, status with respect to public assistance, disability and familial status and discrimination in connection with real property financing or loans because of the social, economic or environmental conditions in which the real property is located, adversely affects the welfare of persons in the city of Duluth. Such discrimination detracts from the dignity and morale of persons in the city, and adversely affects the functioning of democracy in the city. The principal purpose of this Chapter is to establish and further certain human rights in the situations hereinafter described. This Chapter shall be construed to set a public standard which is enforceable through compliance actions by the city of Duluth. Discriminatory practices which violate such rights are hereby declared to be unlawful, and the adoption of this Chapter is deemed to protect such rights.
        The policies and purposes inherent in this Chapter are:
        (a)     To encourage all persons in the city to join in the establishment and preservation of certain human rights;
        (b)     To declare that all persons in the city shall have, as certain civil and human rights, opportunities for obtaining credit, education, employment, public accommodations, public services and housing and real property, without regard to race, color, creed, religion, national origin, age, sex, sexual orientation, marital status, status with respect to public assistance, disability and familial status;
        (c)     To prohibit and prevent discriminatory practices based on race, color, creed, religion, national origin, age, sex, sexual orientation, marital status, status with respect to public assistance, disability and familial status;
        (d)     To protect all persons from unfounded charges of discrimination;
        (e)     To effectuate the aforesaid policies and purposes by providing information, education, mediation, conciliation and enforcement;
        (f)      To resolve complaints in an expeditious manner and to support the ability of parties to resolve complaints through dispute resolution processes.
        Nothing in this Chapter shall be interpreted to restrict or prohibit the implementation of any positive or affirmative action program which is authorized by any law or court order to counter discrimination.

Sec. 29C-2.     Definitions.

        For the purposes of this Chapter, the definitions contained in Minnesota Statutes Section 363.01 are incorporated by reference into this Section. In addition, the following words and phrases shall have the meanings given them.
        Commission. The Duluth human rights commission.
        Complainant. The charging party.
        Authorized community organization. A community organization selected and trained by the commission which agrees to work cooperatively with the commission and to undertake investigations consistent with the requirements of this Chapter.
        Respondent. A person against whom a complaint has been filed or issued.
        Rules. Rules to implement the provisions of this Chapter, and adopted by the human rights commission.

Sec. 29C-3.     Duluth human rights commission - created.

        There is hereby created a permanent Duluth human rights commission which shall consist of 15 members, who shall be appointed by the mayor and be subject to the approval of the city council.

Sec. 29C-4.     Same--Terms of office, qualifications, compensation.

        The 15 persons first appointed and approved for membership on the commission shall be appointed for the following terms:  five persons shall be appointed for a term of three years, one of whom shall be selected as chairperson; five persons shall be appointed for a term of two years; and five persons shall be appointed for a term of one year. Thereafter, any person appointed to the commission shall be appointed for a term of three years. Any member or former member may be reappointed. Members shall serve without compensation.

Sec. 29C-5.     Same--Powers and duties generally.

        The commission shall have the following powers and duties:

        (a)     To receive any complaint of a violation of this Chapter within one year after the occurrence of the alleged violation;
                (1)     Complaint. The commission may accept complaints for action consistent with this Chapter. All complaints must be verified and made in writing on forms provided by the commission and signed by a complainant (the complainant). When any complaint is accepted by the commission, the commission shall serve notice to the complainant, as required by Section 363.116 of Minnesota Statutes, as to the complainant's options and rights relative to the Minnesota Human Rights Act and any time limitations for exercising those rights;
                (2)     Priority case. The commission shall give priority to investigating and processing those complaints in which there is evidence of irreparable harm if immediate action is not taken. If, at any time after the acceptance of a complaint, the human rights officer has reason to believe that a respondent has engaged in any unfair discriminatory practice, the human rights officer may file a petition in the district court seeking appropriate temporary relief against the respondent, pending final determination of proceedings under this Chapter, including an order or decree restraining the respondent from doing or procuring an act tending to render ineffectual any order the commission may enter with respect to the complaint. The court shall have the power to grant temporary relief or a restraining order as it deems just and proper. No relief or order extending beyond the time required to properly investigate the complaint and allow the commission to determine whether there is probable cause to believe a violation occurred shall be granted except by consent of the respondent or after hearing upon notice to the respondent and a finding by the court that there is reasonable cause to believe that the respondent has engaged in a discriminatory practice;
                (3)     Notice to respondent and Answer. When a complaint is accepted, the commission shall within ten days serve a copy of the complaint on the party alleged to be making the discriminatory practice (the respondent) personally or by mail and shall include a statement of the respondent's procedural rights and obligations under this Chapter and a form for the filing of an answer to the complaint. An answer shall be filed by the respondent within 20 days of service of the complaint on the respondent. Failure to file an answer by a respondent may be considered an admission of the allegations in the complaint;
                (4)     Transfer to state. The commission may transfer any complaint to the state commissioner of human rights for further proceedings. Unless or until such complaint is so transferred, the commission may investigate such complaint and may determine whether there is probable cause to believe that a violation has occurred. The filing of a complaint with the commission shall preclude the option of filing the same charge with the state, and the filing of a charge with the state shall preclude the option of filing the same complaint with the commission;
                (5)     Delegation to authorized community organization. The commission may delegate to an authorized community organization the authority to investigate a complaint consistent with the requirements of this Chapter;
                (6)     Investigation. The human rights officer, or any agency or person designated by the commission, shall utilize the office of the city attorney to subpoena persons and documents in its investigation. The human rights officer, or any agency or person designated by the commission, shall commence its investigation upon accepting the complaint and shall complete its investigation within 60 days following the acceptance of the complaint;
                (7)     Mediation. At any time, including prior to the acceptance of a complaint, either party may request that mediation be undertaken or the human rights officer or commission may direct the parties to undertake mediation. Mediation may be conducted by any appropriate neutral third party and may include any form of alternative dispute resolution, including binding or non-binding arbitration. The commission may establish rules for the conduct of mediation and the formation of conciliation agreements;
                (8)     Probable cause. Within 30 days following completion of the investigation, the commission or such members of the commission as may be designated, but not fewer than five commissioners, shall meet and determine whether there is probable cause to believe a violation has occurred. The human rights officer shall present the evidence obtained during the investigation. The commission shall adopt rules to govern the conduct of hearings held to review evidence and make a finding of probable cause. Any determination that there is probable cause to believe that a violation of this Chapter has occurred can be achieved only by a concurrence of not less than a majority of the members of the commission as have been designated to make such determination.
                If the probable cause determination is not made within 100 days following the acceptance of the complaint, the complainant shall be informed in writing of the reasons why the determination has not been made;
                (9)     Conciliation agreement. If probable cause is found, the commission shall attempt to obtain voluntary compliance with the applicable provisions of this Chapter. Any conciliation agreement shall be signed by both parties and approved by the commission. Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the commission determines that disclosure is not required to further the purposes of this Chapter;
              (10)     Referral to Duluth human rights commission or commissioner of the department of human rights . Any determination that there is probable cause to believe that a violation of this Chapter has occurred which relates to discrimination in connection with credit, education, employment, public accommodations and public services may be referred by the human rights officer to the commissioner of human rights pursuant to Section 363.116 of Minnesota Statutes;
              (11)     Action by commission. Housing and real property complaints. Any determination that there is probable cause to believe that a violation of this Chapter has occurred which relates to discrimination in connection with housing and real property may be prosecuted by the commission. If the commission determines that, as to complaints involving housing and real property, it cannot obtain voluntary compliance or if the respondent refuses to participate in alternative dispute resolution procedures within 30 days after a finding of probable cause, the human rights officer may prosecute the complaint and seek civil remedies pursuant to this Chapter. The city attorney or a qualified attorney-at-law designated by the commission shall serve as legal counsel to assist the human rights officer in fulfilling the duties of this Chapter. Any final action taken by the commission under this Chapter is subject to judicial review upon application of an aggrieved party;
              (12)     Staff. The city shall provide administrative and investigative personnel, through the city's general budgetary process, to undertake the requirements of this Chapter;
        (b)     To promote cooperation among all persons and groups for the purpose of effectuating the purposes and policies of this Chapter;
        (c)     To confer with and advise the city's equal opportunity representative;
        (d)     To recommend legislation to the mayor and the city council which will further equal opportunity in the city;
        (e)     To make reports of its activities to the city council as requested by the city council;
        (f)      To establish rules and procedures for the conduct of its business;
        (g)     The Duluth human rights commission shall have any of the powers and duties of a local commission, as defined in Chapter 363 of Minnesota Statutes.

Sec. 29C-6.     Human rights officer.

        There is hereby established the position of human rights officer, which position shall have the following powers and duties:
        (a)     Directing, coordinating and overseeing the process used for receiving complaints of discrimination under this ordinance;
        (b)     Investigating discrimination complaints;
        (c)     Presenting evidence obtained during an investigation to the commission in order to enable the commission to determine if there is probable cause to believe that a violation of this Chapter has occurred which relates to discrimination;
        (d)     At any time after a complaint is filed, facilitating mediation or other alternative dispute resolution procedures between the complainant and the respondent;
        (e)     Taking any actions necessary to secure compliance with this Chapter, including litigation;
        (f)     Supervising staff; administering programs related to discrimination and affirmative action; providing resources to public and private organizations about discrimination and remedies; preparing budgets and grant proposals and administering grants.
        The human rights officer shall possess the following minimum employment qualifications:
        A combination of education/experience which demonstrates proficiency in the following knowledge, skills and abilities:
                (1)     Knowledge of regulations related to equal employment opportunity, affirmative action, discrimination and harassment;
                (2)     Ability to read and interpret government documents;
                (3)     Ability to communicate effectively in writing and speaking, including the ability to speak before large audiences;
                (4)     Ability to maintain confidentiality;
                (5)     Ability to work cooperatively with community groups;
                (6)     Ability to collect, assemble and interpret data, and to make recommendations based on findings;
                (7)     Ability to maintain effective working relationships with other staff members, the public and elected officials.
                (8)     Ability to work with diverse groups and communities of color.
                The human rights officer shall be appointed by the mayor with the approval of the city council and may only be removed by the mayor with the approval of the city council. The mayor shall consult with representatives of the human rights commission in the appointment process. The human rights officer shall be appointed solely on basis of the ability to perform the duties and functions of the office, as set forth in this Chapter.

Sec. 29C-7.     Unfair discriminatory practices.

        Section 363.03 of Minnesota Statutes, as it may be amended from time to time, is hereby incorporated by reference into this Section.

Sec. 29C-8.     Violations.

        (a)     No person shall commit an unfair discriminatory practice;
        (b)     No person shall intentionally engage in any economic or other reprisal against any person because that person has opposed any conduct forbidden under this Chapter or has filed a complaint, testified, assisted or participated in any investigation, proceeding, or hearing under this Chapter, or because that person has associated with a person or group of persons of a certain or different race, color, creed, religion, national origin, age, sex, sexual orientation, marital status, status with respect to public assistance or disability;
        (c)     No person shall intentionally aid, abet, incite, compel, or coerce a person to engage in any conduct forbidden by this Chapter;
        (d)     No person shall intentionally attempt to aid, abet, incite, compel or coerce a person to engage in any conduct forbidden by this Chapter;
        (e)     No person shall intentionally obstruct or prevent any person from complying with any provision of this Chapter, or resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of a duty under this Chapter.

Sec. 29C-9.     Civil remedies.

        (a)     After a finding of probable cause, and in addition to criminal penalties, the commission may refer the matter to the city attorney or any other qualified attorney to maintain a civil action on behalf of the complainant.
        (b)     Any violation of this Chapter may be redressed in a civil action in district court. Any such action shall be heard by a judge without a jury. The court may grant any of the following relief:
                (1)     Temporary or preliminary relief pending final disposition if such relief is necessary to carry out the purposes of this Chapter;
                (2)     Order the defendant to pay compensatory damages to the person who was discriminated against, including damages for mental anguish or mental suffering, in an amount of up to three times the amount for all such damages sustained;
                (3)     Order the defendant to pay punitive damages, in the amount not to exceed $8,500, to the person who was discriminated against;
                (4)     Order the defendant to refrain from violating the provisions of this Chapter which it finds the defendant to have violated;
                (5)     Order the defendant to act affirmatively so as to effectuate the purposes of this Chapter;
                (6)     Allow a prevailing complainant reasonable attorney's fees and costs;
        (c)     After a finding of probable cause, the commission may so certify to a licensing or regulatory agency and, if the respondent does not cease to engage in such discriminatory practice, the licensing or regulatory agency may take appropriate administrative action including suspension or revocation of the respondent's license;
        (d)     As provided in Section 363.117 of Minnesota Statutes and notwithstanding the provisions of any law or ordinance to the contrary, a person who has filed a complaint with the commission may bring a civil action at the following times:
                (1)     Within 45 days after receipt of notice that the commission has determined that there is no probable cause to credit the allegations contained in the complaint; receipt of notice is presumed to be five days from the date of service by mail of the written notice; or
                (2)     After 45 days from the filing of the complaint if a hearing has not been held or if the commission has not entered into a conciliation agreement to which the complainant is a signatory. The complainant shall notify the commission of an intention to bring a civil action, which shall be commenced within 90 days of giving the notice.
        The commission shall terminate all proceedings relating to the complaint upon receipt of a copy of a civil action brought by a complainant. A complainant shall provide to the commission a copy of the summons and complaint in the civil action by registered or certified mail.

Sec. 29C-10.     Exemptions.

        The exemptions set forth in Section 363.02 of Minnesota Statutes apply to this Chapter except that any exception therein which would substantially reduce the coverage of housing accommodations as compared to Section 803 of the federal Fair Housing Act shall not apply to this Chapter.

        Section 2.     That this ordinance shall take effect and be in force six months from and after its passage and publication.


STATEMENT OF PURPOSE:  This ordinance is being proposed by the administration based on its commitment to present a human rights ordinance to the city council for approval.

The human rights commission has reviewed drafts of the ordinance over the past year, and has recently considered and recommended the present draft of the ordinance. The human rights commission has conducted public sessions to present the ordinance and has considered the comments made at those public sessions.

A summary of the process which would be followed for human rights complaints under the proposed ordinance will be made available separately.