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HomeMy WebLinkAbout2003-12-15 Ordinance Prepared by: Susan Dulek, Asst. City Attorney, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5030 ORDINANCE NO. ORDINANCE AMENDING TITLE 2 OF THE CITY CODE, ENTITLED "HUMAN RIGHTS," TO SIMPLIFY THE PROBABLE CAUSE DETERMINATION PROCESS,TO PROVIDE FOR MEDIATION, TO STREAMLINE THE CONCILIATION PROCESS, TO DEFINE LITIGATION WORTHY, TO ESTABLISH PROCEDURES FOR PUBLIC HEARINGS, TO MODIFY THE POWERS OF THE HUMAN RIGHTS COMMISSION, TO CLARIFY CERTAIN DEFINITIONS, AND TO MAKE ADDITIONAL NONSUBSTANTIVE CHANGES. WHEREAS, the distinct roles of the Human Rights Commission ("Commission"), the City Attorney's Office, and the Commission staff need to be clarified with respect to the probable cause investigation and determination; and WHEREAS, the existing conciliation process is cumbersome and not as effective as it could be; and WHEREAS, there currently is no provision for the complainant and the respondent to engage voluntarily in mediation; and WHEREAS, there is no process to analyze when a case should proceed to public hearing following a probable cause determination; and WHEREAS, there are presently few provisions governing the proceedings of a public hearing; and WHEREAS, most of the amendments by which complaints are investigated, probable cause determinations are made, and public hearings are conducted mirror the process used by the Iowa Civil Rights Commission; and WHEREAS, the duties bestowed and the powers granted to the Commission need to reflect the modified role of the Commission in the probable cause determination and its increasing role in educating the public on human rights and illegal discrimination; and WHEREAS, the Commission approved these changes at its meeting on September 23, 2003; and WHEREAS, it is in the best interest of the City to adopt these amendments. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CITY, IOWA: SECTION I. AMENDMENTS. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Age" and substituting in its place the following new definition: Age: Chronological age of any person. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Conciliation Team" and substituting in its place the following new definition of "conciliation": Conciliation: The attempt by the Human Rights Coordinator to reach a resolution with both parties in a case in which a determination of probable cause has been made. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Court" and substituting in its place the following new definition: Court: The district court of the state of Iowa or any judge of the court if the court is not in session at that time. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by adding the following new definition: Crediti "Credit" as defined in section 537.1301(15) of the Code of Iowa, as amended. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by adding the following new definition: Creditor: "Creditor" as defined in section 537.1301 (17) of the Code of Iowa, as amended. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Credit Transaction" and substituting in its place the following new definition: Consumer Credit Transaction: "Consumer credit transaction" as defined in section 537.1301 (11) of the Code of Iowa, as amended. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing Paragraph C of the definition of "Disability" and substituting in its place the following new Paragraph C: C. Being regarded as having such an impairment. "Disability" does not include current, illegal use of or addiction to a controlled substance as defined by chapter 124A of the Code of Iowa, as amended. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Employer" and substituting in its place the following new definition: Employer: Includes any person, wherever situated, who employs one or more employees within the City, or who solicits individuals within the City to apply for employment within the City or elsewhere. The term includes the City itself, and to the extent not inconsistent with State law, all other political subdivisions, public corporations, governmental units conducting any activity within the City and public agencies or corporations. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Investigator." Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Public Assistance Source of Income" and substituting in its place the following new definition: Public Assistance Source of Income: Income and support derived from any tax-supported Federal, State or local funds, including, but not limited to, social security, supplemental security income, temporary assistance for needy families, family investment program, general relief, food stamps, and unemployment compensation, but not including rent subsidies. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by repealing the definition of "Respondent' and substituting in its place the following new definition: Respondent: A person who is alleged to have committed an act prohibited by this Title and/or against whom a complaint has been filed under this Title. Title 2, entitled "Human Rights," Chapter 1, entitled "General Provisions," Section 1, entitled "Definitions," is hereby amended by adding the following new definition: Unfair Practice or Discriminatory Practice: Those practices specified as unfair or discriminatory in sections 216.6, 216.7, 216.8, 216.8A, 216.9, 216.10, 216.11, and 216.11A of the Code of Iowa, as amended, or this Title. Title 2, entitled 'Human Rights," Chapter 1, entitled 'General Provisions," Section 2, entitled "Purpose," is hereby amended by repealing Section 2 in its entirety and substituting in its place the following: It is the purpose of this Title to protect citizens of the City against "discrimination" as defined in this Chapter. Moreover, this Title provides for execution within the City of the policies of the Iowa Civil Rights Act of 1965, as amended, the Federal Civil Rights Acts, as amended, the preamble and part I (articles 1-7) of the "International Convention on the Elimination of All Forms of Racial Discrimination (1966)", as amended, and the promotion of cooperation among the City, State and Federal agencies which are charged, presently and in the future, with enforcing these Acts and instruments. Title 2, entitled "Human Rights," Chapter 2, entitled "Human Rights Commission," Section 1, entitled "Commission Established; General Duties," is hereby amended by repealing Section 1 in its entirety and substituting in its place the following: There is hereby established the Iowa City Human Rights Commission whose duties shall be to disseminate information, educate the public on illegal discrimination and human rights, provide the enforcement necessary to further the goals of this Title, and protect citizens from unfounded charges of discriminatory practices. Title 2, entitled "Human Rights," Chapter 2, entitled "Human Rights Commission," Section 2, entitled "Powers," is hereby amended by repealing Section 2 in its entirety and substituting in its place the following: The Commission created by this Chapter shall have the following powers to: A. Receive complaints alleging unfair or discriminatory practices. B. investigate and study the existence, character, causes and extent of discrimination in the areas covered by this Title and to eliminate discrimination by education and enforcement where necessary. C. Issue publications and reports of the research and investigations of the Commission subject to the limitations of confidentiality. 3 D. Prepare and transmit to the City Council from time to time, but not less often than once each year, reports describing the proceedings, investigations, hearings, decisions and other work performed by the Commission. E. Make recommendations to the City Council for such further legislation concerning discrimination as it may deem necessary and desirable. F. Cooperate, within the limits of any appropriations made for its operation, with other agencies or organizations, both public and private, whose purposes are not inconsistent with those of this Title, and in the planning and conducting of programs designed to eliminate racial, religious, cultural and other intergroup tensions. G. Educate the public on human rights and illegal discrimination, such as organizing and facilitating educational public forums that address one or more of the broad range of topics included within the rubric of human rights. H. Seek injunctive relief as may be appropriate to preserve the rights of the complainant and the public interest when it appears that a complainant may be irreparably injured before a public headng can be called to determine the merits of the complaint. I. Issue subpoenas and order discovery as provided by this Section to aid in investigations of allegations of discrimination. The subpoenas and discovery may be ordered to the same extent and are subject to the same limitations as subpoenas and discovery in a civil action in District Court. Title 2, entitled "Human Rights," Chapter 2, entitled "Human Rights Commission," Section 4, entitled "Records to Be Public; Exceptions," is hereby amended by repealing Section 4 in its entirety and substituting in its place the following: A. The disclosure of information, whether a charge has been filed or not, or revealing the contents of any file is prohibited except in the following circumstances: 1. A written request is received by a party or party's attorney following a probable cause determination. 2. If the Commission has issued a right-to-sue letter, a party or a party's attorney may have access to the Commission case file on that complaint. B. No member of the Commission staff shall disclose the filing of a charge, the information gathered during the investigation, or the endeavors to eliminate such discriminatory or unfair practice by conference, mediation, conciliation or persuasion, except as may be necessary to conduct an investigation of a complaint. Nothing in this Section shall prevent the Commission from releasing such information concerning alleged or acknowledged discriminatory practices to the State Civil Rights Commission, the United States Civil Rights Commission, the Federal Equal Employment Opportunity Commission, and other agencies or organizations whose primary purpose is the enforcement of civil rights legislation. This Section does not prevent any complainant, witness or other person from publicizing the filing of a complaint or the matter therein complained of. Violation of these provisions by a member of the Commission or its staff shall constitute grounds for removal. Title 2, entitled "Human Rights," Chapter 3, entitled "Discriminatory Practices," Section 1, entitled "Employment; Exceptions," Paragraph A is hereby amended by repealing Paragraph A in its entirety and substituting in its place the following: It shall be unlawful for any employer to refuse to hire, accept, register, classify, promote or refer for employment, or to otherwise discriminate in employment against any other person or to discharge any employee because of age, color, creed, disability, gender identity, marital status, national origin, race, religion, sex or sexual odentafion. 4 Title 2, entitled "Human Rights,' Chapter 3, entitled "Discriminatory Practices," Section 1, entitled "Employment; Exceptions," Paragraph F is hereby amended by repealing Subparagraphs 5 and 7 of Paragraph F in their entirety and substituting in their place the following: 5. The employment on the basis of sex in those certain instances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business or enterprise. The bona fide occupational qualification shall be interpreted narrowly. 7. The employment on the basis of disability in those certain instances where presence of disability is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business or enterprise. The bona fide occupational qualification shall be interpreted narrowly. Title 2, entitled "Human Rights," Chapter 3, entitled "Discriminatory Practices," Section 3, entitled "Credit Transactions; Exceptions,' Paragraph D is hereby amended by repealing Paragraph D in its entirety. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 1, entitled "Persons Who May File Complaints; Method of Filing Complaint; Amending Complaint," Paragraph B is hereby amended by repealing Paragraph B in its entirety and substituting in its place the following: Upon the filing of a complaint, the Human Rights Coordinator shall serve notice on the complainant acknowledging the filing and advising the complainant of the time limits and choice of forums provided under the law. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 1, entitled "Persons Who May File Complaints; Method of Filing Complaint; Amending Complaint," Paragraph D is hereby amended by repealing Paragraph D in its entirety and substituting in its place the following: Complaints and Answers may be amended as follows: 1. The complainant shall have the power to amend any complaint at any time pdor to the Human Rights Coordinator's probable cause recommendation. 2. The Human Rights Coordinator shall have the power to amend any complaint after a probable cause finding and prior to the decision to have a public hearing. 3. At the discretion of the administrative law judge, the complaint may be amended after the decision to have a public hearing. 4. The respondent shall have like power to amend such respondent's answer, at any time prior to hearing, and thereafter at the discretion of the administrative law judge. 5. Amendments to the complaint and answer alleging additional acts which constitute unfair or discriminatory practices related to or growing out of the subject matter of the original complaint will relate back to the date the original complaint or answer was filed. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 1, entitled "Persons Who May File Complaints; Method of Filing Complaint; Amending Complaint," is hereby amended by adding a new Paragraph G: ^ complaint or any part thereof may be withdrawn by the complainant at any time prior to the notice of the public headng and thereafter at the discretion of the Commission. However, nothing herein shall preclude the Human Rights Coordinator from continuing the 5 investigation and initiating a complaint on the Commission's behalf against the original respondent whenever it deems it in the public interest. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 2, entitled "Investigation of Complaints; Predetermination Settlement," is hereby amended by repealing Section 2 in its entirety and substituting in its place the following: A. After the filing of a verified complaint, a true copy shall be served within twenty (20) days by certified mail on the person against whom the complaint is filed. Service is effective upon mailing. B. Upon the filing of a complaint the Human Rights Coordinator shall promptly serve notice on the respondent or person charged with the commission of a discriminatory housing practice advising them of his or her procedural rights and obligations under the law or ordinance together with a copy of the complaint. C. The Human Rights Coordinator must commence proceedings with respect to the complaint before the end of the thirtieth (30~h) day after receipt of the complaint. The Human Rights Coordinator may draft and mail to the parties written questionnaire/document requests to which respondent and complainant are required to respond. Answers and documents are to be received by the Human Rights Coordinator's office within thirty (30) days of the receipt of the questionnaire/document request unless an extension has been granted by the Coordinator. D. After reviewing materials responsive to the questionnaire/document request, the Human Rights Coordinator shall determine whether the complaint warrants further investigation. If the Human Rights Coordinator finds there is a reasonable possibility of a probable cause determination or the legal issues present in the complaint need further development, the Human Rights Coordinator shall promptly resume the investigation of the complaint. A complaint determined by .the Human Rights Coordinator not to warrant further processing by the Human Rights office shall be reviewed by the City Attorney. If the City Attorney determines that the complaint does not warrant further investigation, it shall be administratively closed. Notice of such closure shall be promptly served upon the complainant and the respondent by certified mail. Service is effective upon mailing. Such notice shall state the reasons for administrative closure. E. A complainant may object to the administrative closure and request review within twenty (20) days of service. If a complainant makes a timely written request for review of the administrative closure, the Human Rights Coordinator shall promptly review the complainant's request and all relevant material and inform the City Attorney of said review. If, after review then by the City Attorney, it is determined that the complaint does not warrant further processing, the Human Rights Coordinator shall close the file and notify the complainant and respondent of the final decision of administrative closure. If, after review, the City Attomey determines that there is a reasonable possibility of a probable cause determination or the legal issues presented in the complaint need further development, the allegations will be investigated further. F. A complaint may be administratively closed at any time if the complainant cannot be contacted after diligent efforts or is uncooperative causing unreasonable delay in the processing of a complaint. G. Upon completion of the investigation, the Human Rights Coordinator shall issue a written investigative summary and recommendation to the City Attorney as to whether probable cause exists that the person charged in the complaint has committed a discriminatory practice. H. After receipt of the summary and recommendation, the City Attorney shall issue a written opinion as to whether probable cause exists to believe a discriminatory practice occurred as alleged by the complainant. I. Any time after a complaint is filed under this Title, but before the Human Rights Coordinator issues a recommendation to the City Attorney, the Human Rights Coordinator may seek a disposition of the complaint through a predetermination settlement. J. A complaint may be closed as satisfactorily adjusted when the respondent has made an offer of settlement acceptable to the Human Rights Coordinator but not the complainant. Notice of intended closure shall state the reasons for closure and be served by certified mail upon the complainant. The complainant shall be allowed thirty (30) days to respond in wdting to the Human Rights Coordinator either stating the reasons why the offer is unacceptable or accepting the offer. The Human Rights Coordinator will review and consider the response before making a closure decision. K. The complainant or respondent may request mediation of the complaint at any time during the complaint process prior to the probable cause determination. Mediation shall not be undertaken unless both the complainant and respondent agree to participate. Mediation may be discontinued at the request of either party. If the complainant and respondent do not reach a mediation agreement, the complaint process shall continue to resolution as provided in this Section. 1. A mediation agreement is an agreement between the respondent and complainant. It is not subject to review or approval of the Commission. 2. All verbal or wdtten information relating to the subject matter of a mediation agreement and transmitted between either the complainant or respondent and a mediator to resolve a complaint filed under this chapter, whether reflected in notes, memoranda, or other work product, is confidential as provided in §2-2-4(B) of this Title. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 3, entitled "Proceedings on Complaint; Probable Cause," is hereby amended by repealing Section 3 in its entirety and substituting in its place the following: A. If the City Attorney finds that probable cause exists regarding the allegations of the complaint, the Human Rights Coordinator shall notify the complainant and the respondent of the finding. The Human Rights Coordinator shall promptly endeavor to eliminate the discriminatory or unfair practice by conference, conciliation and persuasion. B. If the City Attomey finds that no probable cause exists, the Human Rights Coordinator shall issue a written finding dismissing the complaint and notifying the parties of the complainant's right to appeal the finding. Notice of the no probable cause determination shall be promptly mailed to the complainant and to the respondent by certified mail. Service is effective upon mailing. C. A complainant may object to the finding of no probable cause within ten (10) days of receipt of the notice. If a complainant makes a timely written request for review of the finding, the Human Rights Coordinator shall hear the complainant's evidence within thirty (30) days of the request for review and inform the City Attorney of said review. If no probable cause is again the finding after further review by the City Attorney, the Human Rights Coordinator shall notify the complainant in writing of the decision, and shall close the file. If the City Attorney finds probable cause after review, the Human Rights Coordinator shall proceed with efforts to eliminate the discriminatory or unfair practice by conference, conciliation and persuasion. D. In connection with housing discrimination complaints under Chapter 5 of this Title, final administrative disposition of a complaint shall be made within one year of the date of receipt of a complaint, unless it is impracticable to do so. If final administrative disposition within one 7 year is impracticable, the Human Rights Coordinator shall notify the complainant and respondent in writing. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 4, entitled "Conciliation Procedures," is hereby amended by repealing Section 4 in its entirety and substituting in its place the following: A. Following the probable cause determination, the Human Rights Coordinator shall endeavor to eliminate the discriminatory or unfair practice by conciliation, conference and persuasion for a pedod of thirty (30) days following the initial conciliation meeting with the respondent. After the expiration of thirty (30) days, the Human Rights Coordinator may order the conciliation conference and persuasion procedure to be bypassed if the procedure is determined to be unworkable by reason of past patterns and practices of the respondent, or a statement by the respondent that the respondent is unwilling to continue with the conciliation. The Human Rights Coordinator shall state in writing the raasons for bypassing further conciliation efforts. B. A conciliation agreement shall become effective after it has been signed by the respondent, or authorized representative, the complainant, or authorized representative and by the Human Rights Coordinator on behalf of the Commission. Copies of the agreement shall be served on all parties. The Commission shall be informed of the agreement. C. The terms of a conciliation agreement reached with the respondent may require the respondent to refrain in the future from committing discriminatory or unfair practices of the type stated in the agreement; to take remedial action which, in the judgment of the Human Rights Coordinator, will carry out the purposes of this Title; and to consent to the entry in an appropriate District Court of a consent decree embodying the terms of the conciliation agreement. Violation of such a consent decree may be punished as contempt by the Court in which it is filed, upon a showing by the Human Rights Coordinator of the violation at any time within six (6) months of its occurrence. In all cases in which a conciliation agreement is entered, the Human Rights Coordinator shall issue an order stating its terms and furnish a copy of the order to the complainant, the respondent, and such other persons as the Coordinator deems proper. At any time, in the discretion of the Human Rights Coordinator, the Coordinator may investigate whether the terms of the agreement are being complied with by the respondent. Upon a finding that the terms of the conciliation agreement ara not being complied with by the respondent, the Human Rights Coordinator shall take appropriate action to assure compliance. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 5, entitled "Remedial Action," Paragraphs A and H are hereby amended by repealing Paragraphs A and H in their entirety and substituting in their place the following: A. Hiring, reinstating or promoting of employees with or without pay. Interim earned income and unemployment compensation shall operate to reduce the pay otherwise allowable. H. Payment to the complainant of damages caused by the discriminatory or unfair practice which may include actual damages, emotional distress damages, front pay, court costs and reasonable attorney fees. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 5, entitled "Remedial Action," is hereby amended by adding a new Paragraph L: Any other relief that the administrative law judge finds to be appropriate. 8 Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 6, entitled "Notice and Hearing," is hereby amended by repealing Section 6 in its entirety and substituting in its place the following: A. Litigation Worthy. Upon notification by the Human Rights Coordinator that conciliation has been bypassed or unsuccessful, the City Attorney shall form an opinion as to whether the case is litigation worthy and make a recommendation to two (2) members of the Commission whether the case should be dismissed or proceed to public hearing. If both members of the Commission wish to proceed contrary to the recommendation of the City ^ttomey, they may authorize the Human Rights Coordinator to do so. Otherwise, the Human Rights Coordinator shall dismiss the case or proceed to public hearing in accordance with the recommendation of the City Attorney. B. Representative of commission. The Commission's case in support of the complaint shall be presented by the City Attorney or designee. C. Statement of charges. 1. When a complaint proceeds to public hearing, the Human Rights Coordinator shall prepare a written statement of charges in support of the complaint, which shall contain: a. An allegation that the respondent is a proper respondent within the meaning of and subject to provisions of this Title. b. A factual allegation or allegations of an unfair or discriminatory practice or practices, substantially as uncovered in the investigation, stated in the complaint (including amendments thereto), or stated in the probable cause decision. 2. A statement of charges is sufficient if it: a. Names the respondents and complainants; b. States the section(s) of the code alleged to be violated; and c. Incorporates by reference the complaint and any amendments to the complaint. 3. The statement of charges shall also specifically identify ail allegations, if any, in the complaint, as amended, which: a. Have been closed by other than a probable cause finding, or b. The commission has elected not to prosecute despite a probable cause finding. 4. None of the allegations identified pursuant to 2-4-6B(3) shall be considered as a claim of discrimination in the contested case proceeding, but evidence on such allegations may be considered when relevant to other allegations of discrimination or as background evidence. D. Scheduling conference. The administrative law judge may set the matter for a scheduling conference in order that the parties, including the commission, and the presiding officer may arrive at a mutually agreed date for the public hearing. E. Notice of hearing. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery shall be executed by any of the following means: cedified mail with return receipt requested, personal service as provided in the Iowa Rules of Civil Procedure, first-class mail, or publication as provided by the iowa Rules of Civil Procedure to all interested parties or their attorneys at least 30 days before the date of the hearing. Certified mail return receipts, returns of service, or similar evidence of service shall be filed with the presiding officer. The notice shall include: 1. The time and place of hearing; 2. The nature of the hearing, the legal authority and jurisdiction under which the hearing is being held; 3. A short and plain statement of the matters asserted. This requirement may be satisfied by a statement of the issues as described by the statement of charges or an incorporation of the attached statement of charges; 4. The reference [o the sections of this Title involved; 9 5. Identification of all parties including the name, address and telephone number of the person who will act as advocate for the Commission and of parties' counsel where known; and 6. Identification of the administrative law judge. F. Answer to notice of hearing. The respondent is encouraged to file an answer to the allegation contained within the notice of hearing within 20 days of the service of the notice of headng. Answers are encouraged as a means of sharpening the issues and preserving claimed error. G. Default. 1. If a party fails to appear or participate in a contested case proceeding after proper service of notice, the administrative law judge may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party. 2. Default decisions or decisions rendered on the merits after a party has failed to. appear or participate in a contested case proceeding become final agency action unless, within 15 days after the date of notification of mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated. 3. "Good cause" for purposes of this rule shall have the same meaning as "good cause" for setting aside a default judgment under Iowa Rule of Civil Procedure1.977. H. Filing and service of documents. After the notice of hearing, all pleadings, motions, documents or other papers shall be filed with the administrative law judge with a copy to parties of record, with separate copies to the City Attorney. Except as provided by these rules, the Iowa Rules of Civil Procedure pertaining to discovery, or other laws, all pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the administrative law judge. I. Discovery. 1. Discovery procedures applicable in civil actions as set forth in the Iowa Rules of Civil Procedure, are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the administrative law judge, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure. 2. When discovery of information from the complainant is sought, discovery should be made upon the complainant with a copy thereo[ provided to the City Attorney. When discovery of information from the Commission is sought, discovery should be made upon the Commission with a copy thereof provided to the complainant or the complainant's representative. J. Subpoenas. 1. ^ Commission subpoena shall be issued to a party upon request. Such a request should be in writing, but oral requests may be honored by the administrative law judge. The request shall include the name, address, and telephone number of the requesting party. 2. Parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses. K. Motions. 1. No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought. Any motion for summary judgment shall comply with the Iowa Rules of Civil Procedure. Motions made dudng the hearing may be stated orally upon the record. 2. Any party may file a written response to a motion within 14 days after the motion is served, unless the time period is extended or shortened by the administrative law judge. 10 3. Motions for summary judgment shall comply with the requirements of the Iowa Rules of Civil Procedure 1.981. L. Prehearing conferences. Upon the administrative law judge's own motion or the motion of the parties, the administrative law judge may direct the parties or their counsel to meet with the administrative law judge for a conference to consider: 1. Simplification of issues; 2. Necessity or desirability of amendments to pleadings for purposes of clarification, simplification, or limitation; 3. Stipulations, admissions of fact and of contents and authenticity of documents; 4. Limitation of number of witnesses; 5. Scheduling dates for the exchange of witness lists and proposed exhibits; 6. Identifying matters which the parties intend to request be officially noticed; and 7. Such other matters, including discovery matters, as may tend to expedite the disposit!on of the proceedings. M. Continuances. Unless otherwise provided, applications for continuances shall be made to the administrative law judge. N. Disqualification. A person shall not be appointed as an administrative law judge and an administrative law judge shall withdrew from participation in the making of any proposed or final decision in a contested case if that person: 1. Has a personal bias or prejudice concerning a party or a representative of a party; 2. Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties; 3. Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually contested case or controversy involving the same parties; 4. Has acted as counsel to any person who is a pdvate party to that proceeding within the past two years, unless all parties agree to the administrative law judge;* 5. Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case; 6. Has a spouse or relative within the third degree of relationship that: a) is a party to the case, or an officer, director or trustee of a party; b) is a lawyer in the case; c) is known to have an interest that could be substantially affected by the outcome of the case; or d) is likely to be a material witness in the case; or 7. Has any other legally sufficient cause to withdrew from participation in the decision- making in that case. O. Ex parte communication. Unless required for the disposition of ex parte matters specifically authorized by this Title or the Iowa Rules of Civil Procedure, following issuance of the notice of headng, there shall be no communication, directly or indirectly, between the administrative law judge and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. P. Powers of administrative law judge. The administrative law judge who presides at the hearing shall have all powers necessary to the conduct of a fair and impartial hearing including, but not limited to, the power to: 1. Conduct formal hearing in accordance with the provisions of this Title; 2. Administer oaths and examine witnesses; 3. Compel production of documents and appearance of witnesses in control of the parties; 11 4. Issue subpoenas; 5. Issue decisions and orders; 6. Rule on motions, and other procedural items or matters; 7. Require the submission of briefs; 8. Issue such orders and rulings as will ensure the orderly conduct of the proceedings; 9. Receive, rule on, exclude or limit evidence and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious; 10. Maintain the decorum of the hearing including the power to refuse to admit or to expel anyone whose conduct is disorderly; 11. Take any action authorized by these rules; and 12. Impose appropriate sanctions against any pady or person failing to obey an order. Q. Hearing procedures. 1. Objections. All objections shall be timely made and stated in the record. Any objection not duly made before the administrative law judge shall be deemed waived. 2. Representation of parties. Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. 3. Rights of parties. Subject to terms and conditions prescribed by the administrative law judge, parties have the right to introduce evidence on issues of material fact, cross- examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument. 4. Sequestration of witnesses. At the request of a party or sua sponte, the administrative law judge may order witnesses sequestered so they cannot hear the testimony of other witnesses. 5. Contents of record. The record in a contested case before the administrative law judge shall include: a. All pleadings, motions, and rulings; b. All evidence received or considered and all other submissions; c. A statement of matters officially noticed; d. All questions and offers of proof, objections, and rulings thereon; e. All proposed findings and exceptions; f. Any decision, opinion, or report by the administrative law judge at the hearing. Deliberations of the Commission when deciding whether to adopt a proposed decision are not part of the record unless expressly made part of the record by order of the Commission or the administrative law judge. R. Evidence. 1. The administrative law judge shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law. 2. Stipulation of facts is encouraged. 3. Evidence in the proceeding shall be confined to the issues as to which the parties receive notice prior to the hearing unless the parties waive their right to such notice by express or implied waiver, or the administrative law judge determines that good cause justifies their expansion. 4. Although the rules of evidence do not apply in a contested case hearing, a finding shall be based upon the kind of evidence on which reasonably prudent persons ara accustomed to rely for the conduct of their serious affairs, and may be based upon such evidence even if it would be inadmissible in a jury trial. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The administrative law judge shall give effect to the rules of privilege recognized by law. 12 5. No evidence shall be received at any hearing concerning offers or counter-offers of adjustment during efforts to conciliate or settle an alleged unfair or discriminatory practice. 6. The burden of proof shall be by a preponderance of evidence. S. Evidence of past sexual practices. 1. Discovery. In a contested case alleging conduct which constitutes sexual harassment, a party seeking discovery of information concerning the complainant's sexual conduct with persons other than the person who committed the alleged act of sexual harassment, must establish specific facts showing good cause for discovery, and that the information sought is relevant to the subject matter of the action, and reasonably calculated to lead to the discovery of admissible evidence. 2. Evidence. In a contested case against a respondent who is accused of sexual harassment, or whose agent or employee is accused of sexual harassment, evidence concerning the past sexual behavior of the alleged victim is not admissible. T. Cost of copies of record. Upon request by a party the Commission shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record shall be paid by the requesting party. U. Posthearing briefs. 1. The administrative law judge may fix times for submission of posthearing briefs. Unless otherwise ordered, such briefs shall be filed simultaneously by all parties and there shall be no page limit nor any other formal requirements. 2. Reply briefs. If simultaneous briefs are filed, then any party may file a reply brief within 10 days after service of the brief to which the reply is made; U. Requests to present additional evidence. 1. In general. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence. 2. If a request to present additional evidence is made after the issuance of the proposed decision, then the request must be filed with the appeal or, by a nonappealing party, within 14 days after the service of the appeal. If the Commission grants the motion to present additional evidence, the Commission shall remand the case to the administrative law judge for the taking of the additional evidence and any appropriate modification of the proposed order. V. Proposed decision. After a review of the transcript, the evidence, and the briefs, the administrative law judge shall set forth, in writing, findings of fact, conclusions of law, and a proposed decision and order. The proposed decision becomes the final decision of the Commission without further proceedings unless there is an appeal to, or review on motion of, the Commission within 30 days. W. Review of proposed decision on appeal to the Commission. 1. Appeal by party. Any adversely affected party may appeal a proposed decision to the Commission within 30 days after issuance of the proposed decision. 2. Review. The Commission may initiate review of a proposed decision on its own motion at any time within 30 days following the issuance of such a decision. 3. Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the Commission. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify: a. The parties initiating the appeal; b. The proposed decision or order appealed from; c. The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order; d. The relief sought; and 13 e. The grounds for relief. 4. Omi argument. All parties or their attorneys shall be allowed ten minutes to present oral argument to the Commission whenever the commission reviews a proposed decision pursuant to this rule. The Commission may, in its discretion, allow oral argument to continue longer. 5. Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 10 days thereafter, any party may file a responsive brief. The Commission may shorten or extend the briefing period as appropriate. X. Scope of review by,Commission. 1. Whenever the Commission reviews a proposed decision, it has all the power it would have in initially making the final decision. The Commission may adopt, modify, or reject the administrative law judge's proposed decision or it may remand the case to the administrative law judge for the taking of additional evidence and the making of any further proposed findings of fact, conclusions of law, or decision that it deems necessary. 2. Whenever the Commission reviews a proposed decision, it shall consider only those issues actually presented to the administrative law judge unless the issue was one which either: a. Was raised prior to the proposed decision by a party, but not ruled upon, or b. Was discussed in the proposed decision, but not argued on bdef by the parties. Y. Intervention. 1. Motion. A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the administrative law judge. 2. Grounds for intervention. The movant shall demonstrate that: (a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; (b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and (c) the interests of the movant are not adequately represented by existing parties. 3. Effect of intervention. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor's participation in the proceeding. Z. Awards of attorney's fees. 1. In any final decision in which it is determined that the complainant is entitled to an award of attorney's fees, but the actual amount has not yet been determined, there is, by operation of this provision, an express retention of jurisdiction of the case by the Commission in order to determine the actual amount of attorney's fees to which the party is entitled and to enter a subsequent order awarding those fees, regardless of whether or not such retention of jurisdiction is expressed in the final decision. In such case, the decision is final in all other respects except the determination of the amount of the attorney's fees. 2. If the amount of attorney's fees is not stipulated to by the parties, the administrative law judge shall schedule a hearing on the issue of the amount of the attorney's fees. The administrative law judge's decision is a proposed decision, and either party may appeal as provided in Paragraphs V-X of this chapter. AA. Waiver, modification of rules. 1. Upon notice to all parties, the administrative law judge may, with respect to matters pending, modify or waive any rule herein upon a determination that no party will be prejudiced and that the ends of justice will be served. 2. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the administrative law judge, in the discretion 14 of the presiding officer, may refuse to give effect to such a waiver when the administrative law judge deems the waiver to be inconsistent with the public interest. BB. Application for rehearing. 1. By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order. 2. Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the decision on the existing record and whether the applicant requests an opportunity to submit additional evidence. 3. Time of filing. The application shall be filed with the Commission within 20 days after the issuance of the final decision. 4. Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein. 5. Disposition. Any application for a rehearing shall be deemed denied unless the commission grants the application within 20 days after its filing. The Commission shall notify the parties in writing that the application was denied. CC. Assessment of costs of hearing. 1. General rule. If the Commission prevails in the hearing, the respondent shall pay the "contested case costs" incurred by the Commission. If the respondent prevails in the headng, the commission shall itself bear the "contested case costs" incurred by the commission. 2. Mixed results. Where the Commission is successful as to part of the remedies sought at the hearing and unsuccessful as to part of the remedies, the administrative law judge may recommend an equitable apportionment of "contested case costs" between the commission and the respondent. 3. Costs allowable. The following "contested case costs" and no others will be assessed or apportioned: a. The daily charge of the court reporter for attending and transcribing the hearing. b. All mileage charges of the court reporter for traveling to and from the headng. c. All travel time charges of the court reporter for traveling to and from the hearing. d. The cost of the original of the transcripts of the hearing. e. Postage incurred by the administrative law judge in sending by mail (regular or certified) any papers which are made part of the record. f. Expenses and fees of the administrative law judge, including but not limited to lodging and transportation. DD. Appeals to district court. Appeals to the district courts from the decision of the Commission shall be perfected pursuant to the provisions of Iowa Code chapter 17A. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 9, entitled "Sixty Day Release from Administrative Process; Alternative Judicial Proceedings Upon Complaints," Paragraph B is hereby amended by repealing Paragraph B in its entirety and substituting in its place the following: Requirements For Issuance Of Release: Upon a request by the complainant, and after the expiration of sixty (60) days from the timely filing of a complaint with the Commission, the Human Rights Coordinator shall issue to the complainant a release stating that the complainant has a right to commence an action in the District Court. A release under this subsection shall not be issued if a finding of no probable cause has been made on the complaint, or a conciliation agreement has been executed, or the Commission has served 15 notice of hearing upon the respondent, or the complaint is closed as an administrative closure and two (2) years have elapsed since the issuance date of the closure. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 9, entitled "Sixty Day Release from Administrative Process; Alternative Judicial Proceedings Upon Complaints," Paragraph C is hereby amended by repealing Paragraph C in its entirety. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 10, entitled "Civil Action Elected-Housing," is hereby amended by repealing Section 10 in its entirety and substituting in its place the following: A. A complainant, a respondent, or an aggrieved person on whose behalf a complaint alleging a violation of Chapter 5 of this Title was filed, may elect to have the claims asserted in that charge decided in a civil action. 1. The particular party electing to have his or her case decided in a civil rather than administrative action under subsection 2-5-4L of this Title, must do so no later than twenty (20) days after the date of receipt of the probable cause determination. In the event the Commission makes such election, it must be made not later than twenty (20) days after the date the determination was issued. 2. The person making the election shall give notice to the Human Rights Coordinator and to all other complainants and respondents to whom the election relates. 3. The election to have the charges of a complaint decided in a civil action as provided here, is available only if it is alleged there has been a violation of Section 2-5-1 or 2-5-3 of this Title. B. An aggrieved person may file a civil action in District Court not later than two (2) years after the occurrence or the termination of an alleged discriminatory housing or real estate practice, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing or real estate practice or breach of a conciliation agreement. 1. The two (2) year period does not include the time between the filing of a housing or real estate practice discrimination complaint and the disposition of that complaint by the City Attorney. 2. An aggrieved person may file an action under this Section whether or not a discriminatory housing or real estate complaint has been filed under Section 2-5-1 and/or Section 2-5-3 of this Title, and without regard to the status of any discriminatory housing or real estate complaint filed under those Sections, but: a. If the Human Rights Coordinator obtains a conciliation agreement with the consent of an aggrieved person, the aggrieved person shall not file an action under this Section with respect to the alleged discriminatory practice that forms the basis for the complaint except to enforce the terms of the agreement. b. An aggrieved person shall not file an action under this Section with respect to an alleged discriminatory housing or real estate practice that forms the basis of a probable cause determination issued by the City Attorney if the Commission has begun a hearing on the record under this Chapter with respect to the charge. Title 2, entitled "Human Rights," Chapter 4, entitled "Enforcement," Section 11, entitled "Civil Proceedings-Housing," Paragraph A, Subparagraph I is hereby amended by repealing Paragraph A, Subparagraph 1 of in its entirety and substituting in its place the following: A. 1. If timely election is made under subsection 2-4-10A of this Chapter, the Human Rights Coordinator shall authorize, not later than thirty (30) days after the election is made, the 16 filing of a civil action on behalf of the COmplainant in District Court and the City Attorney, or its designated agent, shall commence and maintain such action. SECTION II. REPEALER. All ordinances and parts of ordinances in conflict with the provision of this Ordinance are hereby repealed. SECTION III. PENALTIES FOR VIOLATION. The violation of any provision of this ordinance is a municipal infraction or a simple misdemeanor. SECTION IV. SEVERABILITY. If any section, provision or part of the Ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconsti- tutional. SECTION IV. EFFECTIVE DATE. This Ordinance shall be in effect after its final passage, approval and publication, as provided by law. Passed and approved this __ day of ,2003. MAYOR ATFEST: CITY CLERK Approved by City Attorney's Office sue/old&res/HR Old.doc 17 Ordinance No. Page It was moved by and seconded by that the Ordinance as nad be adopted, and upon roll call then wen: AYES: NAYS: ABSENT: Champion Kanner Lehman O'Donnell Pfab Vanderhoef Wilbum First Consideration 11/25/03 Voteforpassage:AYES: Champion, Lehman, 0'Donne31, Vanderhoef, Nilburn. NAYS: Kanner. ABSENT: Pfab. ~cend Consideration 12/15/03 Voteforp~,~ge: AYES: Lehman, O'Donnell, Vanderhoef, Wilburn, Champion. NAYS: Pfab, Kanner. ABSENT: None. Date published