Diversity, Inclusion and Civil Rights Advisory Board

City of Wichita Diversity, Inclusion and Civil Rights Advisory Board Agenda ___________________________________________________________ City Hall 455 N. Main, 1st Floor | September 21, 2021 | 5:30 p.m. AGENDA 1. Welcome & Roll Call 2. Approval of Agenda for September 21, 2021 3. Approval of Minutes for August 24, 2021 4. Non-Discrimination Ordinance (NDO) Board Discussion 5. Open Discussion 6. Adjourn City of Wichita | Diversity, Inclusion and Civil Rights Advisory Board | Page 1 of 1  Minutes Wichita Diversity, Inclusion & Civil Rights Advisory Board August 24, 2021 5:30 PM-7:30 PM Members Present: Dioane Gates, Thy X Phan, Kenzie Borland, Renee Carrion (virtual), Pastor Pamela Hughes Mason (virtual), Tabitha Lehman (virtual), Kelli Grant, Shala Perez, : William Polite Jr. Members Absent: Jennifer Brehon, Michelle Cadena City Staff: Adam Nebenzahl, Management Fellow; Donte Martin, Assistant City Manager; LaShonda Garnes WSU/PPMC; Jamie Buster, Deputy City Clerk; Susan Leiker, HR; Angeline Johnson, WSU/PPMC Guests: Item Description 1. Welcome and Roll Call Present members introduced themselves and who they were appointed by. 2. Approval of Agenda for Pastor Hughes Mason moved, Kenzie seconded. Motion passes 8-0. August 24, 2021 3. Approval of Minutes Pastor Hughes Mason moved, Shala seconded. Motion passes 8-0. for July 22, 2021 4. DICR Advisory Board a. Tabitha did not have any concerns. By-law Discussion b. Pastor Mason asked about item 8 as it relates to the description of the chair person. She mentioned about its comparison to a parliamentarian and wanted clarification between the two roles. LaShonda confirmed it is similar to other advisory boards. This was originally established by a different group earlier in the year and emphasized that they can be changed. Pastor Mason questioned if a third person could be added. The secretary position is filled by a city staffer to ensure proper discussion by all members. There is the opportunity to add another position of the board. c. Tabitha asked if Pastor Mason wanted to see something different. Pastor Mason clarified the role of a parliamentarian and their role of overseeing Robert’s Rules of order. d. Pastor Hughes Mason moved to add a position of parliamentarian who is versed in Robert’s Rules of order, quorum, and advise the chairperson. Kenzie seconded. Motion passes 7-2 Shala and Kelli opposed. 5. Kansas Leadership a. Dennis Clary, director of custom civic engagement. He explained Center (KLC) Update on that the KLC was engaged by the city to facilitate the engagement the Discussion they will process around the NDO. facilitate with key b. Emphasized the desire for the board to be involved. Desires stakeholders regarding authentic feedback. the Non-Discrimination Ordinance (NDO) c. Explained the background of the KLC. It is a non-profit organization committed to fostering leadership for stronger, healthier and more prosperous Kansas communities. d. Defined leadership and their leadership principles. e. Gave background on the Non-Discrimination Ordinance. Explained the purpose of the City and KLC partnership. Ultimate goal is to create a trustworthy process. Introduced the Collaborative Premise and Collaborative Leadership. f. Explained KLC’s work including facilitation of a public meeting and development of a comprehensive report that fairly represents and codifies the values and perspectives of the participants. g. Defined what KLC’s expectations are: participation at the board’s discretion. h. Dennis opened up to questions. What questions does the board have, how would they like to be involved, what excites them, and what concerns them. i. Tabitha asked Dennis to clearly define who would be considered advocacy groups and whether that includes faith groups or those who could be discriminated against. Dennis clarified that it means all organizations. j. Donte Martin, spoke about the City’s goals for the session. He explained that the session will include background of current state and federal regulations and identifying gaps and if and how the city should act to address those gaps. Donte shared the goal was to help the Board get all the necessary information to help them make a recommendation. Established 3 recommendations: members of the board participate as individuals, the board participates as a whole body, or the board crafts their own process. Donte opened it up for questions and comments. k. Kenzie asked for clarification as to KLC’s role. Donte explained that KLC is here as a facilitator of a session between stakeholders relating to the NDO. They are here to gauge interest in having the board participate. l. Tabitha welcomed KLC participation and finds that experience valuable. m. Dioane Gates asked about the third option and asked for clarification. Donte answered that it is up to the board what that may look like and explained the background of previous meetings and the NDO and how that became an option. n. Pastor Mason asked for explanation of option 1 again. Donte explained option 1 again. Clarified that final recommendations to the Council will be made as a board. o. Kelli asked if KLC is involved, will there be input on equitable representation in the meeting. Donte explained that there would be discussion. p. Shala asked if the board participated as a body, would there be conflict if individuals make comments and bring their own voices and opinions. Donte stated that he did not believe there would be a  conflict of interest. Shala stated that she would like to see the body participate as a whole. Shala wanted to see a formal schedule giving the public ample notice. q. Kenzie asked what the cost for the facilitation by KLC is. Is it tax payer money? Donte clarified that there will be a cost and contract between the City and KLC. r. Pastor Hughes Mason asked if we are at the place to make the decision or if we needed to discuss more. LaShonda answered that she is going to facilitate making a decision on those 3 options. She clarified that the facilitation will be between specific groups, and that the public will be able to join, but will not be directly engaged. s. LaShonda reiterated the three options: meeting as a body, meeting as individuals, or the board crafting their own process. t. Tabitha clarified that KLC will be engaged with the City regardless of Board participation. u. Shala asked for clarification if we act as a body, they still have their own timeline and public participation. LaShonda confirmed that the board can add on additional meetings, but time is limited. v. William Polite Jr. asked for clarification on option 3. LaShonda explained that KLC will continue their facilitation with key stakeholder groups and the Board will craft their own engagement process. w. Tabitha asked if submitting group recommendations to participate will be available beyond tonight and LaShonda confirmed, yes. x. Tabitha motioned for option 1 and Pastor Hughes Mason seconded. Motion carried 7:2 Kenzie and Renee opposed. y. LaShonda asked if there are questions that KLC should ask with the stakeholder group. LaShonda also said she would follow up with Board too allow further thought. z. Dioane Gates asked about penalization process and how it will be enforced. aa. Kenzie reiterated during prior meetings that Board members are interested in taking the time. She also emphasized the importance of live stream for transparency purposes. bb. Kelli asked if KLC and DICRAB reports will be publicly available. LaShonda stated it will be on the DICRAB website. cc. Dioane Gates asked how much influence the board should have on the NDO. He asked that KLC get clarity on the public’s opinion. 6. Non-Discrimination a. Jennifer Magana here to present what was presented to the Ordinance (NDO) Council regarding the NDO. Update and Board b. Board decided that city staff will facilitate public comment. Discussion c. Ground rules about speaking length. Tabitha felt comfortable allowing 5 minutes per person to speak. William and Kelli preferred 3 minutes. No opposition for 3 minutes. d. Jennifer Magana presented the following: states prohibit discrimination in employment, housing and public accommodations. Defined the protected classes. State of Kansas has statute that does not include gender or gender identity. This  NDO would mirror Kansas Human Rights commission policy. Jennifer furthered defined rules and exceptions in the proposed ordinance regarding housing, employment, and public accommodation. She explained the protections for respondents. She explained the enforcement process and that it would be treated as a civil violation. She defined the expected outcomes of the NDO. e. Tabitha clarified that the city is an enforcing agency. She also asked if there is repercussion for false accusations. Jennifer answered that as written, no. f. Kelli asked how the Kansas Human Commission is selected since the City is mirroring the policy. Jennifer was not sure but believed there is a board. She also explained the difference between interpretation and codification. g. Dioane Gates asked about slide three about the difference in protected classes versus state law. Jennifer clarified that the State does not include sexual orientation or gender as protected classes. The Kansas Human Rights Commission adopted a policy statement based on recent Supreme Court decisions. DIoane asked if the Bostic case defined the difference between sex, sexual orientation, and gender. Jennifer Magana clarified the broad ruling that Bostic Supreme Court Case had. Dioane Gates asked on slide 7 and wanted an example of rental of real property if owner resides on property and no more than four families or individuals. He then asked if there are other statutes that already exist where they are protected. Jennifer Magana gave an explanation on the enforcing agency compared to state and federal law with this proposed ordinance. Dioane asked how a ruling would be interpreted by the state and federal courts. Jennifer was unsure how it rulings would be interpreted. 7. Public Comment a. Liz Hamor: outreach advocate for LGBTQ+ community. Gave introduction and opening to meet and discuss the NDO. Wanted to highlight frustration of intersectionality. Emphasized that sexual orientation and gender are not codified as protected classes under the law. Wanted the board to understand the intersectionality of humans. Asked that this be kept in the forefront. That people may have multiple marginalized identities. b. Brenda Way: Explained why she felt there needs to be an NDO. Emphasized that many groups are marginalized. Believes that the city needs to abolish discrimination and believe this would help. Recognized ordinance 5.70 about use of restrooms and the risks she faces as a transgendered individual. c. Stephanie Byers: Defined who she is and explained her desire and her belief for the need for the NDO. Explained that Kansas could pass counter legislation disallowing cities from passing NDO. d. Andrew Hubbard: Requested that the DICRAB meeting be livestreamed. Did not understand the contracts with KLC and the City, did not like the three options presented. In support of the  NDO and explained examples of where he was discriminated against. Wanted extended for homeless shelters. Wanted good recommendations to the Council. e. Anthony Mai: Member of Wichita for 25 years. Master of Social Work. In support of the NDO. Gave his story of his life experiences as a queer individual. Believes the NDO will protect all citizens. Speaking for the students and kids to feel safe with who they are. f. Kendall Hawkins: Policy coordinator, advocate, and veteran. In support of the NDO. Explained how her students and how they would be affected by the NDO. Would like to see support for this ordinance reiterated the intersectionality of people. g. Sarah Myose: Wants the board to consider the voices that cannot be heard and cannot come into the spaces such as the council meeting because of the timing of these meetings. Stated that this ordinance should be only the beginning of the conversation and should empower queer and transgender individuals. Emphasized investment in young people and those of the next generation. h. Noah Blanco: Wanted to emphasize the cost of bringing cases to the state and federal courts. Believe that the funding should be free. Shortcomings in proposed NDO is in housing. Believes that organizations that have institutionalized continue these practices. Fears legislation that would put people’s lives at risk. Believes that the NDO should go further and be fairer on more specific fronts such as housing. NDO helps communities grow. Believes there are a lot of problems that are not being addressed and not whether it should be needed. i. Nancy Tanton: Likes to see people as people. Believes there are two groups at odds and that they should come together. Going to give up rights so others can have rights and vice versa. Believes there should be non-affiliated or other faith groups and places for people to go. Does not want people to hold on to their rights so strongly. As a landlord, does not ask questions that could put people at risk of discrimination. j. June Scott: Wanted clarification about her recommendations she emailed. LaShonda advised they have been received and will be added with other public comment. k. Chris Pumpelly: Wants rights to be respected. Explained that he deserves respect and dignity as a member of the LGTBQ and shared how important the NDO was. He said he believes that the Advisory Board is being outsourced. Questioned who the key stakeholders that will be affected are. Submitted the municipal equality index. Believes this NDO can be the strongest in the state and the nation. Wants Wichita to be great, now. Does not want to settle. 8. Officer Election Update l. Lashonda asked that board members send in their bio if there were interested in serving in one of the board officer roles. 9. Open Discussion a. Tabitha commented that speakers expressed concern about whether the NDO is necessary at all. Stated that she believes it is necessary and that it is important. Desires to slow this process  down. Believes it needs to be done right. Emphasized this is not an attempt to stall, but rather to do it correctly. b. Dioane requests information on NDOs from similar size cities other than the state of Kansas. c. Tabitha requested to see public comments in a steady stream. d. Dioane asked for more information on the use of restroom in Ordinance 5.70 and wanted clarification who will be able to use restrooms. Jennifer will need to get back to the board on emphasized appreciation on comments from the public and the information 10. Next Steps a. Tabitha was expecting a facilitated conversation before this meeting, but looking for absolute confirmation that this will happen. LaShonda clarified that dates will be presented in the coming days/weeks. b. Shala believes there needs to be a public comment session with advanced notice to the public before the September 21th meeting. c. Shala motioned to have a public comment session before September 21st. Kenzie 2nd. 9-0 vote in favor. d. Pastor Hughes Mason expressed concern about separation of the board if less than half of the board could participate in the public comment. Tabitha also wanted to ensure DICRAB are not violating meeting regulations. Jennifer Magana confirmed that as long as no action is taken at the meeting, there is no minimum number. e. Dioane Gates emphasized the need for higher participation of the board. Shala continued discussion regarding attendance. f. Kelli emphasized the importance to have a public comment session and a facilitated session. g. William Polite asked what influence the Board has over a final decision. LaShonda clarified that the Board’s voice does have influence because the task was given to them. h. NDO will be brought back on September 21st to have a robust discussion. Anticipated to have recommendations by September 21st. i. Officer Election will be delayed until the October meeting. j. No public comment at the September 21st meeting. 11. Adjourn a. Meeting adjourned at 7:53pm August 24, 2021. Minutes filed by Adam Nebenzahl, Secretary  DICR Advisory Board NDO Points of Discussion Point of Discussion Page # Board Member  Should the board recommend stronger 4,6 Tabitha, Kelli guidance on who can be the investigator?  Clarification on who is investigating  Actual or perceived language 4 Tabitha, Kelli  Timeline for filing complaint 12 Tabitha, Kelli  Religious exemptions, what is appropriate Tabitha, Kelli  Religious protections already in place  Restrooms Kelli  Local coverage not provided by state/fed Kelli  Mediation services for those who cannot Kelli afford them  Clarification on where fine monies is routed Kelli within the city  City of Wichita Diversity, Inclusion, and Civil Rights Advisory Board (Draft) Recommendations to City Council Member Shala Perez Ordinance No. 51-600 An Ordinance Creating Chapter 2.06 of the Code of the City of Wichita Pertaining to Nondiscrimination (NDO) Introduction/Committee Charge On July 22, 2021, the Mayor and City Council charged the City of Wichita Diversity, Inclusion, and Civil Rights Advisory Board (DICRAB) with studying the City’s proposed Ordinance Creating Section 2.06 of the City of Wichita Code Relating to Nondiscrimination (NDO) for the purpose of making recommendations, including but not limited to, the adoption or rejection of the NDO and recommended revisions. Committee Process This Advisory Board, as a whole and/or through individual members, considered the following in its analysis of the ordinance and recommendation process: • History of the development of the NDO • Previous and current drafts of the NDO • Relevant state and federal laws that prohibit discrimination • Similar ordinances adopted in Kansas and other similarly situated communities • Public input in the form of public comments facilitated workshops, and written correspondence from key stakeholders, elected and appointed officials, community members, subject matter experts, and members of protected classes • Research and relevant news articles • A review of the current process, policies, and procedures of agencies charged with investigating discrimination complaints in Kansas The City of Wichita Diversity, Inclusion, and Civil Rights Advisory Board met multiple times to gather information and develop recommendations. These meetings included:  • A presentation from Assistant City Manager Donte Martin on the history and City Council actions related to the NDO • A presentation by the Law Department of the City of Wichita covering legal aspects of the NDO • A two-day workshop facilitated by the Kansas Leadership Center to hear from key stakeholder feedback • Multiple public comment sessions during DICRAB meetings • Review of public comments during City Council meetings Engagement by individual members also included: • Attendance at multiple District Advisory Board Meetings • “Listening Tour” events held by W- A Community of Young Professionals, • Attendance at City Council Member Coffee/Breakfasts and online Facebook chats with Mayor Whipple • Attendance at various community events • Individual meetings with organization representatives, community and business leaders, and members of the public Analysis and Recommendations On September 21, 2021, after thoughtful consideration of all public input and information presented, the DICRAB Board met to discuss the NDO benefits and concerns. Through a consensus process, after completing the research and analysis required for these recommendations, we determined that: Shala Perez - Protected classes under the NDO, were overwhelmingly in support of the adoption of the NDO. The passage of this NDO is consistent with other municipalities in Kansas adopting similar nondiscrimination ordinances to demonstrate their commitment to ensuring equal opportunity in employment, housing, and public accommodation. The vast majority of issues raised came from nonprotected classes which either wholly or partially denied the existence of discrimination and/or centered around the following concerns: Religious Exemptions and Exception Concerns The board heard testimony from members of the faith-based community who were both in support of and opposed to the NDO. The involvement of the faith- based community in the public and stakeholder comment opportunities outweighed input from other protected classes and/or interested parties. The issues raised involved ensuring federal and state religious exemptions and exceptions would not be jeopardized by the NDO. Analysis: Because the nondiscrimination ordinance would generally mirror state and federal law, including protections from the Kansas Preservation of Religious Freedom Act, the Kansas Constitution’s Bill of Right’s Section 7 protection, and through specific exemptions for religion and religious organizations in the areas of employment, public accommodations and housing, the NDO would not create an unlawful burden on existing religious exemptions and exceptions. Recommendation: Upholding the NDO regarding religious exemption and exceptions as written. Vagueness of the Ordinance and Investigative Process The board heard comments from the public that the use of the words “perceived or actual” in the language of the ordinance was not precise and that the investigative process was not fully detailed in the ordinance. Analysis: The DICRAB heard testimony from the City of Wichita Law Department and from subject matter experts at Foulston Siefkin Law Firm, who stated the process would be further developed and defined in accordance with the ordinance and any working agreements implemented between the U.S. Equal Employment Opportunity Commission and the Kansas Human Rights Commission. During both occasions, the use of the words “perceived” and “actual” as used in the ordinance was also explained. The use of these words is consistent with establishing the law’s applicability regarding state of mind and is consistent with principles of legal interpretation and usage. Recommendation: Upholding the NDO regarding the use of the language “perceived or actual” as written. Dual discrimination laws The board heard comments from the public that expressed concern there were already federal and state protections prohibiting discrimination. Analysis: Federal, state, and local laws provide avenues for enforcement and relief. These laws are not identical in procedural requirements, filing deadlines, protections, or remedies, although some may overlap. This approach is not unique to civil discrimination laws; it is similarly used in criminal law. For example, the flexibility to charge drug crimes at the federal, state, or city level is utilized depending on the complexity and severity of the case, available resources, and other factors. As mentioned previously, there will be an agreement between agencies as to how these cases are adjudicated. Recommendation: Upholding the NDO as written and an agreement between agencies as to how these cases are adjudicated implemented. Frivolous lawsuits The board heard comments from the public that expressed concern over frivolous lawsuits resulting from the passage/interpretation of the NDO. Analysis: Protections and remedies exist if a civil lawsuit was brought for wrongful purposes. Recommendation: Uphold the NDO as written. Cost Prohibition The board heard comments from the public that expressed concern over the shared expense of mediation. Analysis: Having a process where discrimination issues can be resolved without significant legal expense or prolonged litigation is beneficial. Because attorneys generally only accept cases on contingency which they feel have a high probability of winning, and a potential for damages significant enough to compensate their time investment, upfront legal costs prohibit some individuals from pursuing discrimination complaints. This system has the potential to be less expensive and more accessible than traditional litigation because it utilizes mediation, which is typically less expensive than litigation. Similar municipalities have established waiver programs or sliding scale fees for those unable to pay mediation fees. On example has been to utilize penalties collected from violations of the ordinance to fund these fee programs. Recommendation: Uphold the NDO as written and institute a waiver program or sliding scale fee system for those unable to pay the mediation fees. Bathroom Concerns The board heard comments from the public that expressed concern over transgender members of the community dressing in correspondence with their gender identity utilize bathrooms that are consistent with their gender identity. Analysis: The Equal Employment Opportunity Commission released guidance on June 15, 2021, that specifies employers must not prohibit transgender employees from dressing in correspondence with their identity or using bathrooms, locker rooms or showers that are consistent with their gender identity. Additionally, the DICRAB asked for further clarification from the City’s Law Department on the impact of the NDO on the City’s current ordinance regulating public restrooms Code Sections 5.70.010 and 5.70.020. The following information was provided to the DICRAB on September 14, 2021, by Jennifer Magana, City Attorney and Director of Law: “In the proposed Non-Discrimination Ordinance (“the NDO”), “public accommodations,” which would likely include access to a business’ public restrooms, must not discriminate based on any of the protected classes listed, among them being “gender identity.” “Gender identity” is defined in the NDO as “an individual’s actual or perceived (by the  individual or another) gender-related identity, expression, appearance, or mannerisms, or other gender-related characteristics, regardless of the individual’s designated sex at birth.” This definition is consistent with the expanded interpretation of protections provided under the U.S. Supreme Court case of Bostock v. Clayton County, GA (2020), which interpreted Title VII of the Civil Rights Act of 1964 concerning discrimination based on sex in the employment arena. The current ordinance would not necessarily have to be repealed because of, nor would it be automatically invalidated by, adoption of the proposed NDO; it could continue to be enforced as it currently is – on a complaint-only basis.” Recommendation: Uphold the NDO as written. Areas for Follow-up/Additional Considerations Extend filing time from 60 days to 180 to be more consistent with other agencies and nondiscrimination ordinances. Conclusion / Summary of Recommendations *To be completed after hearing input from other board members and review of the Kansas Leadership Center Report.  DEPARTMENT OF LAW INTEROFFICE MEMORANDUM TO: Diversity, Inclusion and Civil Rights Advisory Board Members FROM: Jennifer Magana, City Attorney and Director of Law RE: City of Wichita Ordinance 5.70.010 regarding bathrooms and the proposed Non- Discrimination Ordinance DATE: September 14, 2021 During the community discussion of the proposed Non-Discrimination Ordinance, I have been asked to explain how the City’s current ordinance regulating public restrooms would be affected. Code Sections 5.70.010 and 5.70.020 read as follows: Sec. 5.70.010. - Public restrooms—Unlawful conduct—Penalty. Whenever a public restroom is clearly identified as being for the use of one sex only, and is in a building or facility open to the public, it is unlawful for any person of the opposite sex who is above the age of ten years to enter or remain within such restroom. Anyone violating this section shall be deemed guilty of a misdemeanor. Sec. 5.70.020. - Exceptions. The provisions of Section 5.70.010 shall not apply to persons who are upon the premises of such a restroom for the purpose of (a) Cleaning; (b) Making repairs; (c) Any bona fide emergency involving the health or safety of an individual or the public in general. This ordinance was adopted in July 1990 with no discussion reflected in the Council Meeting minutes. A citizen had become concerned when her granddaughter (a minor) went to use the women’s restroom in Riverside Park’s Park Villa, and a man was in the restroom. The citizen described him as “lurking” there, and the restroom was next to playground equipment. The citizen then made a request to then-Council Member Frank Ojile to take action to prevent such a situation from occurring again. I have not researched the cases from 1990-2015, but according to Municipal Court, this ordinance has not been prosecuted since 2016, and in the two cases cited that year, the defendants pled guilty. In the proposed Non-Discrimination Ordinance (“the NDO”), “public accommodations,” which would likely include access to a business’ public restrooms, must not discriminate based on any of the protected classes listed, among them being “gender identity.” “Gender identity” is defined in the NDO as “an individual’s actual or perceived (by the individual or another) gender-related identity, expression, appearance, or mannerisms, or other gender-relate characteristics, regardless of the individual’s designated sex at birth.” This definition is consistent with the expanded interpretation of protections provided under the U.S. Supreme Court case of Bostock v. Clayton County, GA (2020), which interpreted Title VII of the Civil Rights Act of 1964 with regard to discrimination based on sex in the employment arena. The current ordinance would not necessarily have to be repealed because of, nor would it be automatically invalidated by, adoption of the proposed NDO; it could continue to be enforced as it currently is – on a complaint-only basis. If violations are reported, the Wichita Police Department would investigate as usual. However, if the suspect asserted that his or her gender identity was not “the opposite sex” of the restroom’s designation, there would be a factual barrier to charging the case. I believe that this assertion would have to be included in the police report and considered as a fact issue before the Wichita Police Department would issue a citation. Under the Kansas Human Rights’ Commission policy which includes sexual orientation and gender identity as protected classes, there would be protection from for individuals who asserted a different gender than what someone else perceived. The enforcement of the ordinance could be challenged on an Equal Protection basis. It may be the appropriate time to consider whether the ordinance should be repealed. An informal survey of a few other large cities in Kansas reveals that no similar ordinance exists in those cities.