Are local boroughs and townships in over their heads with these non-discrimination ordinances?

June 17 – A meeting of the exploratory committee of the Chambersburg Borough Council last night heard from Carl Summerson, a hearing examiner from the PA Human Relations Commission; Charles Gable, Gettysburg Borough Manager; and Sean Shultz, Deputy Mayor Carlisle Borough Council and the discussion was interesting, to say the least.

The exploratory committee has been charged with looking into a possible non-discrimination ordinance for the LGBTQ+ community as well as creating a local Human Relations Commission.

Attorney Clint Barkdoll, Pat Ryan and Michele Jansen talked about the meeting on First News and played clips from the speakers.

The first clip was from Mr. Summerson:

“One would think that the US Supreme Court’s guidance on this would clearly be something that our state courts would follow, but we don’t know. Until they do or until they change the statute when there’s a local ordinance that protects it clearly, sexual orientation or gender identity or expression, that’s clear. They could take that and go to court with that because they could argue that’s not in the state statute.”

Barkdoll said, “I think what he’s referring to there is there is not a state statute. There are not words in the Pennsylvania code that specifically protect LGBTQ or SOGI (sexual orientation, gender identity) issues.”

However, the US Supreme Court decision under Title 7 of the Civil Rights Act of 1964 says the word sex includes gender and gender identity.

Barkdoll continued, “I think what a lot of these groups are pushing is they want to see it in words in a Pennsylvania statute, but I think he’s kind of alluding to the fact there, it’s redundant. Courts, based on that US Supreme Court decision from last year, would certainly say that it includes these categories of protection. Nonetheless you’re still seeing at both the state general assembly level and of course locally, municipalities around the state, they are nonetheless pushing to have legislation enacted or local ordinances enacted to confirm the same thing that the Supreme Court has already said.”

Jansen pointed out, “He said this is the reason LGBTQ advocates want these local ordinances. Their feeling is if we can get it in the local ordinances, clearly stated, then that gives them ammunition to take to court to argue this to further push for it to become a state thing. The fear for me is that they’re really going into a realm of a belief system. We know that there’s this whole argument now about whether trans girls, boys who say they’re girls, can play sports. Locking that into code before we’ve really analyzed whether this is the right thing to do, that’s worrisome. He said if you don’t do it, he doesn’t even see the reason of doing this at the local level unless you try to expand this definition despite the risk that puts the borough in.”

Barkdoll added, “When you hear some of these nuanced explanations from these folks, again it is a reminder that this committee and the borough council in general, they are so over their heads on this. I believe they are acting in good faith, I’m not trying to say that against what they’re trying to do, but they are way over their heads on this which to me is another signal, why would they want to wade in to all of these technical and legal areas when there’s already state and federal agencies that are doing these things? I think they’re opening themselves to all sorts of questions and issues.”

The second clip, also from Summerson, got into the details of actually looking into any complaints at the local level.

Summerson said, “You try to hold a hearing and what’s the problem with that is that sometimes there’s only five commissioners named. If those five commissioners have involved themselves in that case…no one’s available to hear that case because they’ve comingled functions. Investigatory, prosecutorial and adjudicatory have to be separate. Otherwise there’s a fundamental denial of due process. There’s a case out of Reading that’s very clear on that. So local commissions have this problem.”

Ryan asked, “With these commissions and the people that would sit on this board, are they opening themselves up for a civil lawsuit personally? Say the exploratory committee says yeah, let’s go ahead with this and we’re going to make up this panel and we’re going to adjudicate it. Are all those people open up for civil lawsuits? And if you say no, I’m going to jump out of the window here because you can’t do this and not have this be a two-way street. You’re going to accuse me? Fine. I’m going to find you in court and it’s going to be a civil lawsuit and party on.

Barkdoll said, “They likely are immune, just like a council person would be or anyone else in the government. They have immunity.”

Ryan came back with, “Total BS. That’s ridiculous. Thank you FCC for not allowing me to say what’s really on my mind.”

Jansen added, “This is my problem. If you get a bunch of citizens – and they’ve admitted they’ve had like 44 applications for these commissions in the towns where they’ve put these in. Why? Because people who are very active in promoting the LGBTQ agenda are the ones who are going to be interested in sitting on these commissions and if they can sit there and judge their fellow citizens from this new ideology even to its extreme form, you can ruin someone’s reputation, make them sound like a hater. Even if it doesn’t go any farther, it’s going to become public. These people are going to be accused in public and you’re setting citizen upon citizen where one has power and the other does not.”

Barkdoll said, “To the point that the gentleman was making on that clip you played, he’s making a valid point here that you can’t have the same people conducting the investigation that then later sit and do the adjudication. So again you need to add more and more people. This thing just keeps ballooning and ballooning. You need one panel that would do the adjudication. You’re going to need another panel that would do the investigation. You may need even a separate panel that would act as the per say prosecutors. Again the problem is, let’s just take the investigation aspect of it, these are laypeople. They’re not qualified to investigate these cases and to make findings and recommendations to a panel of prosecutors that would then present the case to the panel of adjudicators. These people simply aren’t trained to do that and that gets back to why it should be deferred to the state or federal agency. There’s where the experts are. They have professionally trained investigators, prosecutors, hearing officers that do nothing but this. They are experts. Why a local borough would want to wade into these areas is beyond me.”

The third clip came from Charles Gable, borough manager in Gettysburg.

He said, “If our commission had the authority to investigate and make determinative judgment calls, then I think you are entering a realm of potential legal jeopardy for lack of a better term. I think that is one reason that our council took different levels of adjudication for these concerns. After mediation, we do send it to the…state level and I think that was the consideration that if we did something more we would potentially open the borough up to potential litigation.”

Jansen pointed out, “Mr. Summerson, he’s actually recommending that the borough follow Susquehanna and Lower Marion townships, what they did, which is to take it all the way to adjudication and trials but that’s going to cost money…it could open you up to litigation. But that is what Carl Summerson actually wants them to look at so Mr. I’m-coming-here-with-no-agenda, I don’t feel like he came there with no agenda, but that would be risky.”

Barkdoll added, “To the point that the man in Gettysburg just made there, he seems to be saying they formed these commissions, but they stop at the mediation level. Anything beyond that they refer it up to the state which makes sense to me.”

The issue becomes mediation can only occur if both sides agree to the mediation.

Barkdoll said, “If someone would have a complaint filed against them and they’re invited to mediation and the person says well I’m not going to participate in mediation, the case would simply stop. Presumably, Gettysburg would then just punt it up to Harrisburg and let them sort it out and once again I think why even go to all the trouble and expense and time to get these things formed if that’s the way this is going to go? I think the evidence is they’ve heard virtually zero cases. In many of these municipalities the number is actually zero. I just don’t know why the borough feels so compelled that they want to wade in to all of these landmines of litigation and expenses and exposure to the borough. Let the state and feds take care of this. They’re already doing it very effectively.”

Jansen said, “An attorney from Salzmann and Hughes confirmed. They looked at a cross sampling, across the state. They found almost no complaints have been really heard. None of them have been mediated by the HRC. They’ve confirmed that. Number two, though, I’m worried that the whole reason would be they can still make it public that the complaint was brought. Mr. Summerson made a point of that. That it’ll go to the press and we’ll make it public, so therefore even if you refuse mediation, they can harm your reputation and say that you were accused of something and you refused mediation. That’s power right there and I’m very worried of that kind of power falling into the hands of what sounds like it’s going to be advocates sitting on these commissions.”

Barkdoll pointed out, “I used to be a councilman in Waynesboro many, many, many years ago. I wouldn’t touch this stuff with a ten foot pole. There are just so many landmines involved when they want to get into these areas. They don’t have the expertise. They just don’t have the infrastructure to pull off a program like this. So I think they need to be really careful. Some of those comments you played I think those people are giving some good cautionary tales. It will be interesting to see at the next meeting are they bringing in some people with counterpoints, boroughs and townships that said we looked at this and here’s why we decided no way are we going to do this.”

The next meeting of the exploratory committee will be June 30.