Opposing views on proposed rights amendment

Amendment would protect rights of all

MICHIANA POINT OF VIEW
CHARLOTTE PFEIFER and ROLAND KELLY
7/9/06

Every now and then, ordinary people have the opportunity to do extraordinary things. The South Bend Common Council will have that opportunity on Monday.

That is the day that the council can vote to include sexual orientation and gender identity as a factor of diversity as a reason to report incidents of discrimination to the South Bend Human Rights Commission. The commission can then investigate to see if there is any legitimacy to the claim. As it stands presently, people cannot report incidents of discrimination based on those two factors.

This amendment will protect all people. The amendment will protect a heterosexual person against whom inappropriate advances are made by a gay person, as well as a gay person who is discriminated against based on who he or she is, or is perceived to be. This will cover the public arenas: education, employment, housing and public accommodations.

As a nation, as a state and as a community the majority of people do not support discrimination and they do support protection for gay, lesbian, bisexual or transgender individuals.

Indiana municipalities have the authority to create and amend their civil rights ordinances pursuant to their police powers, the Indiana Constitution, the Indiana Code (Home Rule Statute), and the Indiana Civil Rights Statute. The South Bend Human Rights Commission is the local civil rights entity that has the charge to investigate and carry out the ordinance. Our council has the power to amend the human rights ordinance to allow the commission to investigate allegations of discrimination.

South Bend will join Indianapolis, Bloomington, Fort Wayne, Lafayette, West Lafayette, Michigan City and other Indiana communities.

It is not unusual for South Bend to step up for what is right. We had a Human Rights Commission before it was a federal law. We had an open container ordinance before the state had an open container law. We are not afraid to do the right thing.

A claim that there could be a lawsuit is not a good reason not to pass timely legislation. Any law can be challenged. The threat of challenge did not stop the Founding Fathers, it did not stop the civil rights workers, it did not stop the labor unions, it did not stop the suffragists and it should not stop the South Bend Common Council.

This has been a long and open process. In 2004, we had six meetings throughout the city that were attended by many, including the director and five different sitting commissioners of the Human Rights Commission.

In 2005, we had more discussions and the Human Rights Commission sent a letter to the council condemning discrimination and requesting that the council seek a remedy.

In 2006 we have had even more open, fair and balanced discussions among all parties.

We, Roland Kelly and Charlotte Pfeifer, are co-sponsoring bill 29-06 that will provide a remedy.

No one on the council has to sort out what or how he or she feels about homosexuality. Council members will only have to decide if they are against discrimination. We have added amendments that will protect religious organizations.

On Monday, the council will hear from the Human Rights Department's executive director about the process for filing a complaint, and we will hear about enforcement from the department whose responsibility it is to oversee enforcement, the city attorney. Hopefully, the South Bend Common Council will reach the decision that will benefit the entire community.

Roland Kelly, D-3rd District, and Charlotte Pfeifer, D-2nd District, are members of the South Bend Common Council.



Amendment is neither needed nor enforceable

MICHIANA POINT OF VIEW
TIMOTHY A. ROUSE
7/9/06

Bill No. 29-06, before the South Bend Common Council, was filed by Council Members Charlotte Pfeifer, D-2nd, and Roland Kelly, D-3rd. The public hearing on the proposed ordinance will be at 7 p.m. Monday in the Council Chambers.

This is an emotionally charged issue and many well-intentioned people on both sides are expressing their views. So that the public is aware of the guiding principles and standards in this area, I believe that I must address several issues.

The editorial mentioned a statewide poll released in May. The poll was commissioned by Indiana Equality, which notes on its Web site that it "is committed to full equality for all Indiana residents regardless of sexual orientation or gender identity."

Indiana Equality teamed up with Ellen Ann Andersen, an associate professor of political science at Indiana University-Purdue University Indianapolis, to conduct the survey. Andersen has written extensively on various aspects of gay rights and prepared the survey questions. She worked in consultation with Indiana University Center for Survey Research in conducting the survey. The survey polled only 504 adult Indiana residents from Nov. 11, 2005, to Dec. 27, 2005. While it is laudable that 79 percent of those polled agree that "gay/lesbian Hoosiers should have the same civil rights protections as others," the poll did not provide any information to those polled that current Indiana law does not authorize municipalities to legislate in the GLBT area.

All Indiana cities are specifically governed and restricted by the Indiana Civil Rights Act to prohibit discrimination "based solely on race, religion, color, sex, disability, national origin or ancestry." These seven categories are the only ones currently authorized by state law to be addressed by a local human rights commission. Before cities could add an area not currently authorized, the Indiana state law would have to be amended. Indiana's Home Rule authority does not enable a city to violate a state law.

I believe that this information should have been a part of the survey. I further believe that the survey questions should have been developed by a neutral person so that the survey would not be perceived as being biased in any way.

The second item in the editorial addresses Mayor Stephen Luecke's support of an ordinance addressing GLBT protections which would mandate compliance. Most of the proponents of the GLBT ordinance are focused on making sure that South Bend is seen as a "city that cares."

As chief executive officer of South Bend, Luecke could issue an executive order addressing GLBT city government employment policies. Such action would be similar to what the late Gov. Frank O'Bannon did in 2001 to prohibit "sexual orientation discrimination in public employment." It addressed Indiana's 35,000 state employees. That policy is reviewed annually and was reaffirmed by Gov. Mitch Daniels.

Indianapolis Mayor Bart Peterson issued an executive order in 2004 prohibiting "discrimination on the basis of sexual orientation." Such mayoral executive actions are legal, and are not subject to the restraints and restrictions placed on city councils by the Indiana Civil Rights Act.

The Tribune favors a local ordinance which calls for voluntary compliance. Bill No. 29-06 calls for mandatory compliance and, if passed, calls for first time violators to be fined $1,500, with a fine of $2,500 for repeat violators.

The council is charged to conduct its due diligence requirements on all proposed legislation which comes before it. Due diligence requires us to review governing law, study relevant facts and data, and listen to our constituents. That is why I recommended that the bill be referred to the council's personnel and finance committee for review and recommendation, and committee public hearings. This was done.

I also recommended that the bill be referred to the South Bend Human Rights Commission for review and recommendation. This was not done.

I believe that since the South Bend Human Rights Commission was created by local ordinance and is charged with "working cooperatively with" the council, its input would be imperative. The commission's data on alleged GLBT discrimination would be relevant to our deliberations.

Copies of the commission's reports, documents and minutes when GLBT issues were discussed and debated would also be helpful. To date, the council has no such information, and does not know if any exists.

I advised, too, that the bill be referred to the city's Department of Administration and Finance for review and recommendation. This was not done. The city controller oversees South Bend's Human Resources and Human Rights offices, whose insights would be helpful with regard to whether the proposed ordinance would have any financial impact on the city. Since GLBT are not recognized by the federal or state legislatures, there would be no federal or state funding available. Such funds currently pay for much of the local human rights operations in our city. Would city tax dollars need to be earmarked if the local ordinance is passed? What would be the impact on wage contracts now in effect?

I also recommended that the written reports from the South Bend Human Rights Commission and the Department of Administration and Finance be distributed and that a public hearing before the council then be set. This was not done.

Very detailed legal memorandums prepared by the South Bend Human Rights Commission attorney and our own council attorney, each dated Dec. 2, 2005, highlighted several legal concerns with regard to the bill. I do not believe that these legal obstacles can be overcome.

The South Bend Common Council's mission statement provides that the council members are: "To make certain that our City government is always responsive to the needs of our residents and that the betterment of South Bend is always our highest priority." As an elected public official, I must adhere to the principles and language of the laws which govern municipalities. Although it may be tempting to legislate in areas which are popular, to do so would fly in the face of the state and federal laws.

There is no state or federal law which enables municipalities to pass an ordinance addressing GLBT. There has been no substantial and credible evidence entered into the record that there is GLBT discrimination occurring in South Bend. As a result there is no "compelling governmental interest to remedy discrimination" by creating a special class of individuals who would benefit from special rights.

There are other avenues which could be pursued, such as a mayoral executive order. There are several judicial rulings which have found that GLBT claims may be actionable under Title VII of the federal Civil Rights Act.

I recognize the good intentions of the proponents of the bill, as well as those who have voiced opposition. I sincerely believe that South Bend is composed of caring citizens and that they are entitled to know the facts. I hope that this brief summary will assist our community in analyzing the proposed legislation.

Timothy A. Rouse, D-At Large, is president of the South Bend Common Council.