How will the NDO in Chambersburg actually work?

October 18 – With Chambersburg Borough Council passing a nondiscrimination ordinance for the LGBTQ+ community members and looking to create a Human Relations Commission to hear complaints in a 7-3 vote recently, a lot of people are asking what will happen if a complaint is made.

Attorney Clint Barkdoll, Pat Ryan and Michele Jansen discussed the NDO this morning during the Big Talk on First News.

Barkdoll predicts the borough will generate some kind of a form that you can get from borough hall or online that you could fill out the complaint. It would then go to this appointed commission at which point they would send it to the person the complaint is against, outlining the allegations and then inviting that person to attend a mediation session with the person who filed the complaint.

At which point, you can say thanks, but no thanks or just don’t respond to it and there’s nothing the borough can do with it.

Ryan said, “What a way to spin your wheels.”

Jansen said, “My fear is reputation and if that information gets out, I don’t know how much that can get to the press or it can get out into the community. We know Councilman Allen Coffman has been called a xenophobe now by somebody in a public meeting because of the wonderful vote the council took on him when we know the original letter – that was the whole thing with Dr. Day who sent a letter. The funny thing is she didn’t even write that letter. It was the Franklin County Coalition for Progress. The same group that is putting forth maybe a school board member. They’re the ones that wrote the email that had the biased and hateful descriptions of rural Pennsylvanians as being in the past. Very oppressive. They’re the ones that wrote that obnoxious, biased, hateful statement that then Allen just reacted to in I think a very normal way and very mild way but then unfortunately it was ascribed to the person who just used the form letter to send it in. It wasn’t even her words, which is just ridiculous then that it went to a vote on him being some kind of a bigot, which was not at all evident in the email he wrote or anything else. It’s just sad. This is the fear I have of these things that they will go places that really have no business. It’s just subjective determinations and that’s why I would caution anyone to agree to go into any of their mediations because we see the bias at play.”

Barkdoll said, “I think you’re going to see this whole process shut down or melt down very quickly. If complaints start to come in and if everyone that gets a complaint filed against them simply ignores it, this local board, this local commission they’re going to be just rendered moot. Those complaints would go nowhere with the state Human Relations Commission either. They simply don’t meet the legal criteria of discrimination. So if it stops at the local level by virtue of just the people not participating in the process, it very well may just stop. Yes the complainant could file a further complaint with the state Human Relations Commission or the EEOC, but based on some of these examples we’ve seen thus far, those complaints would not go anywhere, either, so this thing becomes kind of a circular firing squad, a lot of wheel spinning that will not lead to anything.”

Ryan said, “Perfect example of government in action. Well done, borough. Great job.”

Taking the worst-case scenario. Let’s say a complaint is filed and lawyers are involved and the outcome is essentially nothing. Does the person who had the complaint filed against them have the opportunity to sue for lawyer’s fees, etc.?

Barkdoll said, “It is possible. If someone has filed a frivolous complaint, but somehow through that process, there’s been reputational damage. Pennsylvania does recognize a civil tort action known as malicious prosecution, which basically means if someone has filed a frivolous lawsuit or a frivolous claim against you, which gets dismissed, you can then countersue that person for the damages that it has caused, whether that’s reputational damages, out of pocket costs that you paid to an attorney to defend the case, maybe even missed work, lost business, all of those things could be on the table if such a scenario were to occur. Absolutely.”

Ryan asked, “And would that go also against the commission or do they have cover of government? Ridiculous.”

Barkdoll said, “The commission is going to be sovereignly immune. Remember they would not be the ones filing the complaint, either. They’re simply acting more as an intermediary and a mediator if someone agrees to participate. The cause of action would be purely against the person who filed the original complaint.”

Jansen added, “I would like to hear that they cannot go to the press with this stuff because that Human Relations Commission gentleman that was there, he’s the one that said, oh, we would go to the press and we’d put this out there. They better not be doing that. If somebody refuses their mediation, they should not have the right to go and put that out into the press as a straw man to then make people look badly at a business or an individual that someone just decides that they’re going to bring a complaint against.”

Barkdoll said, “Absolutely and I would hope they’re getting legal counsel. They have a solicitor. These complaints should not be public. They should not be disclosing details, certainly if someone refuses to participate because of the reasons we’re discussing. I think everyone could be opening themselves to liability, so they would be wise to keep these things as private as possible.”