HomeMy WebLinkAboutOrdinance 17-021 Ordinance 17-021
An Ordinance Amending Division 2 of Article V. of Chapter 2 of the Code of
Ordinances of the City of Brookings, South Dakota and Pertaining to the Human
Rights Commission of the City of Brookings.
Be It Ordained and Enacted by the Council of the City of Brookings, State of South
Dakota, as follows:
I.
Sec. 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 means the Americans with Disabilities Act, being 42 U.S.C. §§ 12101 et seq.
Age means the chronological age of any person.
City attorney means the duly appointed attorney for the city or such person
designated by the city attorney.
Commission means the Brookings Human Rights Commission.
Complainant means a person for or on whose behalf a complaint alleging unlawful
discrimination has been filed or issued.
Disability means 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 section 2-143(5) and (6) is unrelated to an individual's
ability to utilize and benefit from opportunities, programs, and facilities of the
accommodations and services.
Discrimination means any unlawful act or attempted unlawful act which, because of
actual or perceived race, color, sex, creed, religion, ancestry, national origin, familial
status, disability, marital status, gender identity, or sexual orientation, 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,
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 unlawful and is a violation of this chapter.
Educational institu�ion means 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 means to use or be entitled to be the use and benefit of the services of a
person as an employee.
Employee means any and all persons who perform services for any employer for
compensation, whether in the form of wages, salary, commission or otherwise.
Employer means 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 means the state of being employed as an employee by an employer.
Employment agency means 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 means:
(1) One or more individuals under the age of 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.
(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 18 years.
Gender identity or expression means the actual or perceived gender-related
identity, appearance, expression or behavior of an individual regardless of the
individual's assigned sex at birth.
Hire means to engage or contract for or attempt to engage or contract for the
services of any person as an employee.
Labor organization means 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 means a person duly authorized and licensed by the state to engage in the
practice of law.
Marital status means 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 means each and every place, establishment or facility of
whatever kind, nature or class that caters or offers services, facilities or goods to the
general public 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
gratuity, it shall be deemed a public accommodation during such period.
Public services means 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 sa/esperson means a real estate broker and a real
estate salesperson as defined by state law.
Real property means 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 means a person against whom a complaint alleging unlawful
discrimination has been filed or issued.
Sexual harassment means 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 means actual or perceived homosexuality, heterosexuality, or
bisexuality.
Sec. 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.
Sec. 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 referral 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, unlawfu! 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 finro 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 if:
1. A state or federal program has designated the residence for the
elderly; or
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 percent 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 be 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 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
empfoyee 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 subsections
(11)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.
Sec. 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 percent 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 and suppliers.
Sec. 2-145. - Responsibilities and duties of city employees.
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.
II.
Sec. 2-146. - Continued.
The city has established in and for the city, a human rights commission.
Sec. 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 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.
Sec. 2-148. - Term of office; date of appointment; compensation.
(a) A!I 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.
(b) All members of the human rights commission shall serve without compensation.
Sec. 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.
Sec. 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.
Sec. 2-151. - Meetings.
The human rights commission shall meet at such times and places as may be
determined by such commission.
Sec. 2-152. - Quorum/participation by 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.
Sec. 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.
Sec. 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. The commission has the
power to investigate complaints alleging discrimination against individuals or groups
because of their 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.
Sec. 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 mufival 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 find 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 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 unlawful discrimination in violation
of this ordinance.
Sec. 2-156. - Filing complaint.
(a) 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. Whenever the commission has
information indicating that any person has been discriminated, it may issue and
file a verified complaint.
(b) 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.
Sec. 2-157. - Time for filing complaint.
Any complaint filed under this chapter shall be filed within 180 days after the last
occurrence of an alleged discriminatory or unfair practice.
Sec. 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 panel conducts a hearing on the complaint.
Sec. 2-159. - Determination of probable cause.
(a) 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
five business days prior thereto.
(b) 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.
Sec. 2-160. - Conciliation.
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 shal( be
signed by the complainant, respondent and the commission chairperson. Conciliation
shall be a confidentiat procedure.
Sec. 2-161. - Public hearing.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) Hearings before the public hearing panel are not confidential.
Sec. 2-162. - Dismissal of complaint.
(a) 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 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.
(b) 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.
(c) 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.
Sec. 2-163. - Depositions and discovery.
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.
Sec. 2-164. - Prosecution of violation.
(a) 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 contempt of court. The
commission shall render to the city attorney assistance as requested in
connection with any prosecution.
(b) 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 $10,000.00 for willful or repeated violations or refusal to comply with the
order of the commission.
Sec. 2-165. - Rights of parties to seek judicial determination.
Nothing contained in this ordinance shall be construed to limit the right of the
complainant to make and file a complaint, nor to preclude, abridge or restrict the right
of appeal or the right of 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.
Sec. 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.
Sec. 2-167. -Time fimit for filing complaint.
Any complaint filed under this chapter shall be filed within 180 days after the alleged
discriminatory or unfair practice occurred.
Secs. 2-168-2-170. - Reserved.
111.
The adoption of this ordinance constitutes an exercise of the City's home rule powers as
granted by Article IX, §2 of the South Dakota Constitution.
IV.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading: September 12, 2017
Second Reading: September 26, 2017
Published: September 29, 2017
CITY OF BROOKINGS, SD
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���, Keith W. Corbett, Mayor
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