HomeMy WebLinkAboutOrdinance 15-005 Ordinance No. 15-005
An Ordinance Amending Article V. of Chapter 2 of the Code of Ordinances
of the City of Brookings, South Dakota and Pertaining to the
Human Rights Committee of the City of Brookings.
BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH
DAKOTA,AS FOLLOWS:
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Section 2-141. Definitions.
For the purposes of this ordinance,the following definitions shall apply unless the context
clearly indicates or requires a different meaning.
ADA.The Americans with Disabilities Act, being 42 U.S.C. §§ 12101 et seq.
AGE. Chronological age of any person.
CITY ATTORNEY.The duly appointed attorney for the city or such person designated by the city
attorney.
COMMISSION. The Brookings Human Rights Commission.
COMPLAINANT. A person for or on whose behalf a complaint alleging unlawful discrimination
has been filed or issued.
DISABILITY. A physical or mental impairment of a person resulting from disease, injury,
congenital condition of birth or functional disorder which substantially limits one or more of the
person's major life functions; a record of having an impairment; or being regarded as having an
impairment which:
(1) For purposes of Section 2-143 (1)through (3), inclusive, is unrelated to an individual's
ability to perform the major duties of a particular job or position, or is unrelated to an
individual's qualifications for employment or promotion;
(2) For purposes of Section 2-143 (4) and (8) is unrelated to an individual's ability to
acquire, rent, or maintain property; and
(3) For purposes of Sectian 2-143 (5) and (6) is unrelated to an individua!'s ability to utilize
and benefit from opportunities, programs, and facilities of the accommodations and
services.
DISCRIMINATION. In accordance with state law, any unlawful act or attempted unlawful act
which, because of sex, race, color, creed, religion, ancestry, disability, national origin or familial
status, results in the unequal treatment or separation or segregation of any person, or denies,
prevents, limits or otherwise adversely affects, or if accomplished would deny, prevent, limit or
otherwise adversely affect the benefit or enjoyment by any person of employment,
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membership in a labor union organization, ownership or occupancy of real property, a public
accommodation, a public service or an educational institution. DISCRIMINATION as defined
above is unlawfui and is a violation of this chapter. In addition, it is the policy of the City that
discriminatory practices based on marital status, gender identity or sexual orientation,while
not prohibited by State law or City ordinance, constitute unfair practices which adversely affect
people. The City, through education and as permitted by Section 2-155, will seek to improve
human relations and eliminate such discriminatory practices. Accordingly, discriminatory
practices based on marital status, gender identity or sexual orientation will not be investigated
or be the subject of complaint resolution until permitted by State Law.
EDUCATIONAL INSTITUTION. Any university, college or school operating within the city
including any school, institution or organization for vocational training, but the term shall not
apply to the students of,or the education provided by, any school maintained and operated by
a religious corporation, or association solely for the benefit of its own membership.
EMPLOY. To use or be entitled to the use and benefit of the services of a person as an
employee.
EMPLOYEE. Any and all persons who perform services for any employer for compensation,
whether in the form of wages, salary, commission or otherwise.
EMPLOYER. Any person within the city who hires or employs any employee, and any person
wherever situated who hires or employs any employee whose services are to be partially or
wholly performed in the city, but the word EMPLOYER shall not include any person with respect
to the hiring or employment of a household domestic employee, or any religious corporation,
association or society with respect to the hiring or employment of individuals of a particular
religion,when religion shall be a bona fide occupational qualification for employment, provided
the selection is not based on race, color, sex, creed, religion, ancestry, national origin, disability,
marital status, gender identity, or sexual orientation.
EMPLOYMENT.The state of being employed as an employee by an employer.
EMPLOYMENT AGENCY.Any person regularly undertaking,with or without compensation,to
procure employees for any employer or to procure for employees opportunities to work for any
employer and includes any agent of the person.
FAMILIAL STATUS.
(1) One or more individuals under the age of eighteen (18) domiciled with one of the
following:
A. A parent or another person having legal custody of the individual or individuals.
B. The designee of the parent or the other person having custody of the individual or
individuals, with the written permission of the parent or other person.
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(2) Protections against discrimination on the basis of familial status shall apply to any
person who is pregnant or is in the process of securing legal custody of any individual
who has not attained the age of eighteen (18) years.
GENDER IDENTITY or EXPRESSION. A term meaning a gender-related identity, appearance,
expression or behavior of an individual regardless of the individual's assigned sex at birth.
HIRE. To engage or contract for or attempt to engage or contract for the services of any person
as an employee.
LABOR ORGANIZATION. Any person, employee representation commission or plan in which
employees participate and which exists wholly or in part for the purpose of dealing with
employers concerning grievances, labor disputes,wages, rates of pay, hours or other terms or
conditions of employment and shall include any conference,general commission,joint or
system board or joint council.
LAWYER. A person duly authorized and licensed by the state to engage in the practice of law.
MARITAL STATUS. The state of being married, single, divorced, separated or widowed.
PERSON. Includes one or more individuals, partnerships, associations, corporations,
unincorporated organizations, mutual companies,joint stock companies,trusts, agents, legal
representatives,trustees,trustees in bankruptcy, receivers, labor organizations, public bodies,
public corporations and the state and all political subdivisions and agencies thereof.
PUBLIC ACCOMMODATION. Each and every place, establishment or facility of whatever kind,
nature or class that caters or offers services, facilities or goods to the general pubtic for a fee or
charge. Each and every place, establishment or facility that caters or offers services, facilities or
goods to the general public gratuitously shall be deemed a public accommodation if the
accommodation receives any substantial governmental support or subsidy. Public
accommodation shall not mean any bona fide private club or other place, establishment or
facility which is by its nature distinctly private, except that,when such distinctly private place,
establishment or facility caters or offers services,facilities or goods to the general public for a
fee or charge or g�l�gratuity, it shall be deemed a public accommodation during such
period.
PUBLIC SERVICES. The services or facilities provided within the city to the general public
including those provided by any public facility, department, agency, board or commission,
owned, operated or managed by or on behalf of the state, any political subdivision thereof, or
any other public corporation.
REAL ESTATE BROKER or REAL ESTATE SALESPERSON. A real estate broker and a real estate
salesperson as defined by state law.
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REAL PROPERTY. Any right,title, interest in or to the possession, ownership, enjoyment or
occupancy of any parcel of land, any building situated thereon, or any portion of the building in
the city.
RESPONDENT. A person against whom a complaint alleging unlawful discrimination has been
filed or issued.
SEXUAL HARASSMENT. A form of sex discrimination. Sexual harassment may take the form of
deliberate or repeated comments, questions, representations or physical contacts of a sexual
nature which are unwelcome to the recipient. Sexual harassment may also take the form of
conduct that has the purpose or effect of creating an intimidating, hostile or offensive
environment.
SEXUAL ORIENTATION. A term describing a person's attraction to members of the same sex
and/or a different sex, usually defined as lesbian,gay, bisexual, heterosexual, or asexual.
Section 2-142. Declaration of Policy and Purpose.
It is the public policy of the city and the purpose of this chapter:
(1) That discriminatory practices based on race, color, sex, creed, religion, ancestry,
national origin, familial status, disability, marital status, gender identity, or sexual
orientation with respect to employment, labor union membership, housing
accommodations, property rights, education, public accommodations and public
services, or any of them,tend to create and intensify conditions of poverty, ill health,
unrest, lawlessness and vice and adversely affect the public health, safety, order,
convenience and general welfare;the rights, privileges and opportunities threatened by
those discriminatory practices are hereby declared to be civil rights;
(2) To declare as civil rights the rights of all persons to the fullest extent of their capacities,
and without regard to race, color, sex, creed, religion, ancestry, national origin,familial
status, disability, marital status, gender identity, or sexual orientation, equal
opportunities with respect to employment, labor union membership, housing
accommodations, property rights, education, public accommodations and public
services;
(3) To prevent and prohibit,to the extent permitted by law, any and all discriminatory
practices based on race, color, sex, creed, religion, ancestry, national origin,familial
status, disability, marital status, gender identity, or sexual orientation,with respect to
employment, labor union membership, housing accommodations, property rights,
education, public accommodations or public services;
(4) To protect all persons from unfounded charges of discriminatory practices; and
(5) To effectuate this policy by means of public information and education, mediation and
conciliation, and enforcement.
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Section 2-143. Act of Discrimination.
Without limitation, the following are declared to be discrimination:
(1) For an employer, because of race, color, sex, creed, religion, ancestry, national origin,
familial status, disability, marital status, gender identity, sexual orientation,to fail or
refuse to hire, to discharge an employee, or to accord adverse, unlawful or unequal
treatment to any person or employee with respect to application, hiring,training,
apprenticeship,tenure, promotion, upgrading, compensation, layoff, discharge, or any
term or condition of employment;
(2) For an employment agency, because of race, color, sex, creed, religion, ancestry,
national origin,familial status, disability, marital status, gender identity, or sexual
orientation,to accord adverse or unequal treatment to any person in connection with
any application for employment, any referra) or any request for assistance in
procurement of employees, or to accept any listing of employment on that basis;
(3) For any labor organization, because of race, color, sex, creed, religion, ancestry, national
origin,familial status, disability, marital status, gender identity, or sexual orientation,to
deny full and equal membership rights to an applicant for membership or to a member;
to expel, suspend or otherwise discipline a member; or to accord adverse, unlawful or
unequal treatment to any person with respect to his or her hiring, apprenticeship,
training,tenure, compensation, upgrading, layoff or any term or condition of
employment;
(4) For any owner of rights to housing or real property, or any person acting for an owner,
with or without compensation, including any person licensed as a real estate broker or
salesman, attorney, auctioneer, agent or representative by power of attorney or
appointment, or to any person acting under court order, Trust, or Will, because of race,
color, sex, creed, religion, ancestry, national origin, familial status, disability, marital
status, gender identity, or sexual orientation,to fail or refuse to sell, rent, assign or
otherwise transfer any real property to any other person, or to accord adverse,
unlawful, or unequal treatment to any person with respect to the acquisition,
occupancy, use and enjoyment of any real property.The provisions of this section do
not apply to rooms or units in dwellings that contain living quarters for no more than
two families living independently of each other, if the owner maintains and occupies
one of the living quarters as his or her residence.
(a) For the purposes of determining discrimination based on familial status, a FAMILY is
one or more individuals under the age of 18 who are domiciled with their parent,
legal custodian or person granted custody with permission of the parent or
custodian. This definition includes a person who is pregnant or in the process of
securing custody of a person under the age of 18. Discrimination based on familial
status applies to housing accommodations only.
(b) The provisions of this section as they refer to familial status do not apply to
residences publicized as specifically designated for older or disabled residents a+�if:
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(1) A state or federal program has designated the residence for the elderly;
(2) The residences are intended for and solely occupied by persons 62 years of age
or older; or
(3) Facilities and services for the residence are designed to meet the needs of the
elderly, and at least 80%of the units are occupied or intended to be occupied
by one or more persons 55 years of age or older.
(c) It is an unfair or discriminatory practice to design or construct for first occupancy
any multi-family dwelling with more than four units for sale, rent, lease, assignment,
sublease or transfer that does not enable accessibility to ground floor common areas
and usability of ground floor housing units by disabled persons or by wheelchairs. If
the building has elevators, all housing units and common areas shall be usable by
disabled persons and persons in wheelchairs. The accommodations may include
widened doors, lowered electrical switches and outlets, lowered environmental
controls, grab bars or reinforcements, kitchens and bathrooms usable by the
disabled. Nothing in this provision may be construed to require prior approval of
plans for construction by the commission.
(d) It is also discriminatory to refuse to permit, at the expense of the disabled person,
reasonable modifications of existing property that may be necessary to afford full
enjoyment of the property. The landlord may, where it is reasonable to do so,
condition permission for remodification on the renter's agreeing to restore the
premises to the condition that existed prior to the modification at the conclusion of
renter's tenancy, reasonable wear and tear excepted.
(5) For any person engaged in the provision of public accommodations, because of race,
color, sex, creed, religion, ancestry, national origin,familial status, disability, marital
status, gender identity, or sexual orientation,to fail or refuse to provide to any person
access to the use of and benefit from the services and facilities of those public
accommodations; or to accord adverse, unlawful, or unequal treatment to any person
with respect to the availability of the services and facilities,the price or other
consideration therefor,the scope and quality thereof, or the terms and conditions
under which such are made available, including terms and conditions relating to credit,
payment, warranties, delivery, installation and repair;
(6) For any person engaged in the provision of public services, because of race, color, sex,
creed, religion, ancestry, national origin,familial status, disability, marital status, gender
identity, or sexual orientation,to fail or refuse to provide to any person access to the
use and benefit thereof, or the terms and conditions under which such are made
available;
(7) For any person, because of race, color, sex, creed, religion, ancestry, national origin,
familial status, disability, marital status, gender identity, or sexual orientation, directly
or indirectly,to conceal any unlawful discrimination;to aid, abet, compel, coerce, incite
or induce another person to discriminate; or by any means,trick, artifice, advertisement
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or sign,to use any form of application, or make any record or inquiry, or device
whatsoever to bring about or facilitate discrimination; or to engage in or threaten to
engage in any reprisal, economic or otherwise, against any person because of the
latter's filing a charge, testifying or assisting in the observance and support of the
purposes and provisions of this chapter;
(8) For any person, bank, banking organization, mortgage company, insurance company or
other financial institution or lender to whom application is made for financial assistance
for the purchase, lease, acquisition, construction, rehabilitation, repair or maintenance
of any real property or any agent or employee thereof to discriminate against any
person or group of persons, because of the race, color, sex, creed, religion, ancestry,
national origin, familial status, disability, marital status, gender identity, or sexual
orientation of the person or group of persons or of the prospective occupants or tenants
of the real property in the granting,withholding, extending, modifying, renewing or in
the rates, terms, conditions and the extension of services in connection therewith;
(9) Wherever religious organizations or bodies are exempt from any of the provisions of this
chapter,the exemption shall apply only to religious qualifications for employment or
residence in church-owned or church-operated property, and the organizations shall not
be exempt from any provisions of this chapter relating to discrimination based upon
race, color, sex, creed, religion, ancestry, national origin,familial status, disability,
marital status, gender identity, or sexual orientation;
(10) Nothing contained in this chapter shall apply to any business or enterprise on or near a
Native American Indian reservation with respect to any publicly announced employment
practice of the business or enterprise under which a preferential treatment is given to
any individual because the individual is an Indian living on or near a reservation;
(11) Nothing in this chapter requires the following people to modify property in any way,
incur any additional expenses, or exercise a higher degree of care for persons having a
disability than for a person who does not have a disability nor does this chapter relieve
any person of any obligations generally imposed on all persons, regardless of any
disability, in a written lease, rental agreement, or contract of purchase or sale, or to
forbid distinctions based on the inability to fulfill the terms and conditions, including,
but not limited to,financial obligations of the lease, agreement or contract:
(a) Employer;
(b) Provider of public accommodations;
(c) Provider of public services; �
(d) Person selling, renting, or leasing real property;
(e) Person acting on behalf of any of the persons listed in a-d above,with or without
compensation, including but not limited to any person licensed as a real estate
broker or salesman, attorney, auctioneer, agent, or representative by power of
attorney or appointment; and
(f) Person acting under court order,Trust or Will.
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Section 2-144. Contracts with City.
The city and all of its contracting agencies, departments, and units shall include in all contracts
entered into or renewed or extended provisions whereby each contracting party agrees that:
(1) With respect to any and all business conducted or acts performed pursuant to the
contract, the other contracting party shall be deemed an employer within the meaning
of this chapter and shall be subject to the provisions of this subchapter;
(2) If the other contracting party fails to perform the contractual provisions,the contract
may forthwith be terminated and cancelled in whole or in part by the city, and the other
contracting party shall be liable for any costs or expense incurred by it in obtaining from
other sources the work and services to be rendered or performed or the goods or
properties to be furnished or delivered to the city under the contract so terminated or
cancelled;
(3) Should the commission in a proceeding brought as provided in this chapter find that the
contracting party has engaged in discrimination in connection with any contract and
issue a cease and desist order with respect thereto,the city shall withhold up to 15%of
the contract price until such time as the commission's order has been complied with or
the other contracting party has been adjudicated not guilty of discrimination;
(4) The other contracting party will permit access to any and all records pertaining to hiring
and employment and to other pertinent data and records for the purpose of enabling
the commission , its agencies or representatives,to ascertain compliance with the
provisions of this chapter applicable to the other contracting party; and
(5) This section shall be binding on all subcontractors e�and suppliers.
Section 2-145. Responsibilities and Duties of Citv Emplovees.
All officials, commissioners, agents, employees and servants of the city, elected and appointed,
including civil service employees, and whether serving with or without compensation, shall
observe the terms and provisions of this chapter and shall, except as expressly prohibited by
law, respond promptly to any and all requests by the commission for information and for access
to data and records for the purpose of enabling the commission to carry out its responsibilities
under this chapter. The failure of any official, commissioner, agent, employee or servant of the
city to comply with any provision of this chapter relating to any matter within the scope of his
or her official duties shall be deemed a violation of this chapter.
It.
That the following Sections of Division 2 of Article V. and pertaining to Human Rights
Commission are amended to read as follows:
Section 2-146. Continued.
The citv has established in and for the citv, a human ri�hts commission.
Section 2-147. Composition.
The human rights commission shall consist of ten members, nine of which shall be selected by
the mayor with the advice and consent of the council, and one of which shall be selected by the
board of county commissioners. In selecting members, due regard shall be given to
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representation of minority groups on the human rights commission. One member of the human
rights commission selected by the mayor shall be a student enrolled in a post-secondary
educational institution.
Section 2-148. Term of Office; Date of Appointment; Compensation.
(1) All members of the human rights commission shall serve for terms of three years,
except the student member who shall serve a one-year term. Any members whose term
expires may be reappointed.
(2) All members of the human rights commission shall serve without compensation.
Section 2-149. Vacancies.
If a vacancy on the human rights commission occurs on a date other than the first Monday of
the year,then the vacancy may be filled by appointment for the remainder of the vacated term,
which term shall expire on the first Monday in January. If a member is absent from three
consecutive regular meetings without authorization from the human rights commission,the �
member's seat may be considered vacant, and a new member may be appointed.
Section 2-150. Officers.
The human rights commission shall designate from among its membership a chairperson,vice-
chairperson, and such other officers and subcommittees as it may deem appropriate and
necessary.
Section 2-151. Meetin�s.
The human rights commission shall meet at such times and places as may be determined by
such commission.
Section 2-152. Quorum/Participation bv Members Limited to One Panel.
Three members of the commission shall constitute a quorum for probable cause determination
pursuant to Section 2-159.Three members of the commission shall constitute a quorum for
public hearing panels pursuant to Section 2-161. Members participating in a probable cause
determination shall not also serve on a public hearing panel for the same matter. A majority of
the voting members then holding a current appointment shall constitute a quorum for the
transaction of all other business.
Section 2-153. Rules, Regulations.
The commission,with the approval of the city council, shall adopt suitable rules and regulations
for the conduct of its operations and the effectuation of the purposes of this chapter.
Section 2-154. Purpose.
The purpose of the Brookings Human Rights Commission (BHRC) is to improve human relations and
civil rights in the Brookings area by fighting discrimination through educational efforts and a
complaint resolution procedure. Except as limited by Section 2-155(15),the commission has the power
to investigate complaints alleging discrimination against individuals or groups because of their sex,
race, color, creed, religion, ancestry, disability, familial status, or national origin, with respect to
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origin, with respect to employment, labor union membership, housing accommodations, property
rights, education, public accommodations or public services.
Section 2-155. Substantive and Procedural Authority and Duties.
The authority and duties of the Brookings Human Rights Commission shall be to:
(1) Promote human and civil rights for all its citizens and visitors.
(2) Promote a mutual understanding and respect among all racial, religious and nationality
groups and work to discourage and prevent discriminatory practices against any such
group.
(3) Attempt to foster,through community effort or otherwise, goodwill, cooperation and
conciliation.
(4) Study and determine the existence, character, causes and extent of discrimination in
employment, housing accommodations, property rights, education, public
accommodations, public services in the city, and discrimination based on age, disability,
marital status,familial status, ethnicity, religion, sexual orientation, gender identity and
political affiliation. The study and determination of discrimination is based on a broad
understanding of civil and human rights as embodied in the 1964 Civil Rights Act as
amended, which includes race, color, religion, gender and country of origin.
(5) Seek to prevent and eliminate bias and discrimination because of race,color, sex, creed,
religion, ancestry, national origin, familial status, disability, marital status,gender
identity, or sexual orientation by means of education, persuasion, conciliation and,to
the extent permitted, enforcement, and utilize all the powers at its disposal to carry into
execution the provisions of this chapter.
(6) Receive complaints alleging discrimination and conduct those investigations and
inquiries as may reasonably appear necessary to�nd the facts with respect thereto.
Investigations and inquiries can only be initiated upon the receipt of a complaint and
shall be limited to the allegations contained in a complaint.
(7) Conduct public meetings and hearings, gather and disseminate information to
governmental agencies and to the public.
(8) Utilize the records and services of municipal, state and federal governmental
departments and agencies to the extent permitted by law, and pursuant to agreement
with departments and agencies may refer matters for preliminary inquiry, conciliation,
hearings and findings.
(9) Furnish to any appropriate state or federal agency having jurisdiction in the premises a
transcript of the proceedings and findings in any case in which a court of competent
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jurisdiction or the commission has, after hearings, found that any person has unlawfully
discriminated.
(10) Enlist the cooperation of various racial, religious and ethnic groups, community, civil,
labor and business organizations, student organizations, fraternal and benevolent
associations, veterans' organizations, and other groups in educational campaigns and
programs devoted to teaching the need for eliminating group tensions, prejudices,
intolerance, bigotry and unlawful discrimination.
(11) Cooperate with federal, state and city agencies in developing programs showing the
contributions of the various groups to the culture and traditions of our city and nation,
the menace of prejudice, intolerance, bigotry and unlawful discrimination and the need
for mutual respect.
(12) Advise the mayor, city council members, city manager and the respective departments
of the city concerning matters consistent with the purposes and powers of the human
rights commission.
(13) Recommend ordinances and other legislation pertinent to the purposes of protection of
human rights.
(14) Conduct educational programs and disseminate information in furtherance of the
purposes and policies of the human rights commission.
(15) Hear and investigate complaints alleging discrimination regarding the City of Brookings,
in accordance with the grievance procedures for ADA grievances adopted by resolution
of the city. Pursuant to State law,there is presently no legal authority to investigate
complaints alleging discrimination because of marital status, gender identity or sexual
orientation. Accordingly, until State law authorizes municipalities, pursuant to SDCL 20-
12-4,to investigate discriminatory practices based on marital status, gender identity or
sexual orientation,these discriminating practices cannot be investigated or enforced by
the Human Rights Commission.
Section 2-156. Filin�Complaint.
(1) Any person claiming to be aggrieved by a discriminatory practice may file with the
commission a verified written complaint which shall state the name and address of each
person complained against (respondent� and shall set forth the pertinent facts as known
to the complainant. Except as limited by Section 2-155(15), whenever the commission
has information indicating that any person has been discriminated, it may issue and file
a verified complaint.
(2) The city may, however, dismiss a complaint if the complainant fails to state a claim upon
which relief can be granted, or if the city determines the complaint has been abandoned
or withdrawn if the city determines the city is not authorized by State Law to enforce
compliance.
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Section 2-157. Time for filin�Complaint.
Any complaint filed under this Chapter shall be filed within one hundred eighty (180) days after
the last occurrence of an alleged discriminatory or unfair practice.
Section 2-158. Service of Respondent and Answer.
Promptly upon the filing of any complaint,the commission shall serve a copy thereof, by
personal service or registered or certified mail, upon the respondent. Respondent shall file a
written answer thereto within ten calendar days after receipt thereof or within any period of
extension granted by the representative of the city as designated by the commission. The
Complaint and Answer shall be confidential documents until such time as a public hearing pane!
conducts a hearing on the Complaint.
Section 2-159. Determination of Probable Cause.
(1) The commission shall proceed to make the investigation based on a filed complaint as it
may deem appropriate to determine whether there is probable cause to believe that the
allegations of discrimination are well founded.The investigation shall remain
confidential until such time as the matter is heard by a public hearing panel or is
removed to Circuit Court. If there is no probable cause to believe that the allegations of
discrimination are well founded, the commission shall dismiss the complaint. If, after
investigation, it is found that probable cause to believe that the allegations of
discrimination are well founded,the commission shall transmit the finding of probable
cause, along with the reasons for the finding and a recitation of the evidence and names
of witnesses that support the finding,to both complainant and respondent. Both
complainant and respondent shall be permitted to inspect any documents not prepared
by the commission in the files of the commission that are relevant to the determination
of probable cause. If there is probable cause to believe that the allegations of
discrimination are well founded, and the matter has not been satisfactorily resolved,the
parties shall be served notice of the time and place of a conciliation conference by
personal service or registered or certified mail at least�ve business days prior thereto.
(2) No later than 20 days after notice of the finding of probable cause and prior to hearing,
the complaining party or the respondent may elect to have the claims asserted in the
complaint decided in a circuit court in lieu of a hearing before the commission. Parties
shall be notified of their right to this election in the notice of the finding of probable
cause. Upon receipt of notice of election,the commission shall have no further
jurisdiction over the parties concerning the charge filed. In a civil action, if a court or jury
finds that an unfair or discriminatory practice has occurred, it may award the charging
party compensatory damages. The court may grant as relief any injunctive order
including affirmative action. Punitive damages may be awarded under SDCL 21-3-2 for a
violation of this chapter as they pertain to housing. Attorney's fees and costs may be
awarded to the prevailing party for housing matters.
Section 2-160. Conciliation.
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The conciliation conference shall be conducted by a representative of the city, who shall
attempt to achieve a just resolution and obtain assurances that the respondent will eliminate
unfair or discriminatory practices and take appropriate affirmative action. The settlement terms
shall be set forth in a conciliation agreement which shall be signed by the complainant,
respondent and the commission chairperson. Conciliation shall be a confidential procedure.
Section 2-161. Public Hearin�.
(1) If the matter before the commission cannot be resolved by the conciliation conference
panel,the matter shall be set for public hearing. The parties shall be served notice of the
time and place of a public hearing by personal service or registered or certified mail at
least ten days prior thereto. The notice shall include a statement informing the parties
of their right to transfer the matter to the circuit court. The public hearing shall be
conducted by a public hearing panel which shall be composed of three commissioners,
none of whom shall have been involved in the investigation, determination of probable
cause or conciliation.
(2) The public hearing panel shall have authority to conduct prehearing conferences,to
subpoena witnesses to appear,testify and produce records, books, papers and other
documents,to administer oaths,to take testimony, to receive evidence,to examine and
cross examine witnesses and issue orders authorized by this chapter. Any evidence as
well as any testimony that is offered or provided during mediation shall be confidential
and can't be used in the public hearing.
(3) Both complainant and respondent shall appear in person at the hearing and may be
represented by counsel. Both may, in accordance with the order of procedures as may
be determined by the public hearing panel, present evidence, call witnesses and present
arguments bearing upon the facts alleged in the complaint.
(4) All witnesses, including complainant and respondent, may be examined and cross
examined.The hearing may consist of a bifurcated proceeding without direct and cross
examination if the commission deems it appropriate in the circumstances. The conduct
of the hearing will be within the sole discretion of the commission. The public hearing
panel shall not be bound by the strict rules of evidence applicable to judicial
proceedings, but its findings must be based upon competent evidence. Each witness at
the hearing shall testify under oath. A stenographic record shall be made of the
proceedings or an electronic device may be used. In a judicial review,the commission
may, upon request,furnish the complainant and respondent each with a copy of the
transcript of the hearing without charge.
(5) Hearings before the public hearing panel are not confidential. �
Section 2-162. Dismissal of Complaint.
(1) If the commission determines that allegations of discrimination are not well founded,
that the unlawful act or practice complained of has been satisfactorily eliminated and
that further proceedings are unnecessary, or the allegations complained of are being
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processed or have been addressed,to the satisfaction of the commission by another
agency or court, it may order the dismissal of the complaint. It shall within five days of
the determination serve notice of the order upon the complainant and respondent by
personal service or registered or certified mail.
(2) The public hearing panel may also take and direct the affirmative action as in the
judgment of the public hearing panel will effectuate its purposes. The powers of the
public hearing panel are coextensive with the powers of the state human rights
commission as set forth in SDCL 20-13-42. These powers include awarding
compensation incidental to the violation other than pain and suffering, punitive or
consequential damages; costs allowed under SDCL Ch. 15-17 and any other appropriate
relief including reasonable attorney fees for housing matters as in the judgment of the
public hearing panel will effectuate the purposes of this chapter.
(3) Further,the public hearing panel may order the respondent to cease and desist from
discriminatory or unfair practices and to take the affirmative action including hiring,
reinstatement, or upgrading of employees with or without back pay,the referring of
applicants for employment by any respondent employment agency, and the remittance
or restoration of inembership by any respondent labor organization.
Section 2-163. Depositions and Discoverv.
The commission,through the city attorney's office, shall have power to cause the deposition of
witnesses to be taken or other discovery procedure to be conducted upon notice to the
interested person in like manner that depositions of witnesses are taken or other discovery
procedure is to be conducted in civil actions pending in court in any manner concerning
contested cases.
Section 2-164. Prosecution of Violation.
(1) If a respondent fails to comply with a conciliation agreement or fails to obey an order
issued by the public hearing panel,the commission may request the city attorney to
prosecute the respondent in a court of competent jurisdiction for violation of the terms
of this chapter.The failure of a person to obey a subpoena issued pursuant to this
chapter may be punished as a-contempt of court. The commission shall render to the
city attorney assistance as requested in connection with any prosecution.
(2) The commission or a party may obtain an order of the court for the enforcement of the
provisions of this chapter. The court may allow the prevailing party reasonable
attorney's fees and costs against the respondent.The court may also assess a civil
penalty against the respondent in an amount not to exceed $10,000 for willful or
repeated violations or refusal to comply with the order of the commission.
Section 2-165. Ri�hts of Parties to seek ludicial Determination.
Nothing contained in this ordinance shall be construed to limit the right of the comptainant to
make and file a complaint, nor to preclude, abridge or restrict the right of appeal or the right of
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anyone concerned or affected to a review of the facts and issues in a court of competent
jurisdiction on the evidence and merits in any matter involved.
Section 2-166. Application to Other Disabilities.
The commission,to the extent permitted by law, is authorized to apply any portion of this
chapter which it may deem applicable to deal with discriminatory actions and practices against
individuals or groups disadvantaged by reason of physical, mental or social handicap and not
otherwise within the purview of this chapter.
Section 2-167. Time Limit for filin�Complaint.
Any complaint filed under this chapter shall be filed within One Hundred Eighty (180) days after
the alleged discriminatory or unfair practice occurred.
III.
This Ordinance is effective on January 1, 2016.
IV.
Any or all ordinances in conflict herewith are hereby repeaied.
First Reading: March 24, 2015
- Second Reading: May 26, 2015
Published: May 29, 2015
CITY OF BROOKINGS, SD
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ATTEST: oy�""`�"^�, Tim Reed, Mayor
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Shari Thornes, City Clerk
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