The Legal Meter Will Run & Run & Run..

CHAMBERSBURG – The Chambersburg Town Council ’s Special Exploratory Committee to study adding a local non-discrimination ordinance on behalf of LGBTQ advocates to expand their rights, and a local Human Relations Commission (HRC) to investigate, adjudicate and enforce such an ordinance, held its third meeting with three guest testifiers. 

The first guest was Carl Summerson, Hearing Examiner of the PA Human Relations Commission. Summerson began by stating he had no agenda but was at the meeting to answer questions. He went on to describe the various levels of local commissions the borough could structure which would depend on what the municipality wanted to accomplish. The lowest level he described was one of education only such as Pottstown PA had set up, with no complaint process. A middle level would be to set up the power to receive complaints and then attempt to mediate, which is where he said most of the over 60 municipalities out of Pennsylvania’s over 2500 municipalities that have adopted such local ordinances, have structured their HRCs. A higher level of HRC could move on to adjudication and hearings for any non-discrimination complaint brought to it, which would mostly be limited to the larger municipalities and cities such as Philadelphia and Pittsburgh.

He spoke of some of the legal difficulties municipalities face when adding these local ordinances such as interpreting how the Human Relations Act defines protected categories, how the municipality fulfills areas of the act by which they can establish a local HRC, making sure they don’t commingle certain duties that would violate separation of certain duties and also making sure time limits for taking action at the state level are not violated causing the loss of state rights.

He admitted the reason LGBTQ advocates want local ordinances is to expand the traditional definition of sex beyond the state definition, and even suggested if you were not going to expand beyond what the state is doing, there isn’t much point in doing something at the local level. He recommended the borough look at two municipalities which are expanding on what the state is doing as the model for how to structure their ordinance, which suggests that perhaps Mr. Summerson may have had a bit of an agenda after all. He also informed the committee that most municipalities would take on additional risks by expanding on state law and that most implementing non-discrimination ordinances have chosen not to do so. He said most municipalities have limited their enforcement to the mediation level to avoid legal grey areas, more expenses and costly law suits.

Charles Gable, Gettysburg Borough Manager was the next guest and shared with the committee a little of Gettysburg’s experience of adopting a local non-discrimination ordinance.  He said it took them about 15 months of going over about 32 or 34 ordinances across the Commonwealth and that they landed on a midlevel approach for their HRC. It does not have the power to investigate but only the authority to do mediation. If things break down in mediation they then refer the parties to the state HRC.

He said they had no problem finding volunteers to serve on their 5 member local commission, as their community, typical of the national climate, is interested in these types of issues. They wanted diverse skill sets, and ended up with an attorney, a local pastor, two people from Gettysburg College, and one person from the business community. He said that they are now waiting to have the first organizational meeting and for their training which they prefer to get from state, revealing that is not required that the training come from the state.

Gable said they did not get much pushback over the substance of the ordinance itself but on the costs associated with it and that was probably the biggest reason they took the middle, mediation only position of their HRC that they did. He said once you get into investigative procedures you start incurring additional legal fees and other issues related to a budgetary perspective.

The final guest was Sean Shultz, Deputy Mayor, Carlisle Borough Council, Carlisle being a borough that adopted a similar non discrimination ordinance and HRC in 2016 after considering and not passing it in 2009. He said for them the big driver was the LGBTQ+ community and ensuring that there was coverage for that class of discrimination. He said they did do something different than what the state requires, expanding the number of employers to be covered by the ordinance. The state allows employers with fewer than four employees to be exempt, Carlisle expanded the ordinance to cover down to one employee. He described their HRC as consisting of 4 people and 2 alternates. They required every member to get training and that it turned out a retiring attorney who initially interviewed with them for the commission, had the skills to provide that training. He said they too had no problem getting volunteers as they had a number of people passionate about doing this work. They have had very few cases and no cases that have gone beyond them to court. He indicated they concentrated on LGBTQ+ cases and for other categories of discrimination they encouraged use of the state option. 

The meeting wrapped up with questions answered by an attorney from Salzmann Hughes answering some questions posed from the last meeting in which it was revealed that in their research, that of all the local nondiscrimination ordinances and HRCs established that they sampled from across the state, there were actually very few complaints brought to them. There also were no mediations performed by the HRCs, that they could find, including ones established up to 10 years ago. They did not look at all 60 plus municipalities however, and said this wasn’t completely conclusive. There were very few LGBTQ+ complaints and they only found one in Allegheny County where an opinion was given by the HRC on a sexual orientation discrimination case in 2012.

Cathy Leedy, who did nearly all of the speaking during the meeting and asked the vast majority of questions, announced that the next meeting of the Exploratory Group will be June 30th. She said multiple business representatives were invited with one confirmed so far, that being Stephen Christian, president of the Greater Chambersburg Chamber of Commerce.