The Billings Outpost

Poorly defined terms doomed city’s NDO

COMMENTARY

Brad Molnar

The Billings Nondiscrimination Ordinance was quietly hatched in a Billings City Council subcommittee in the winter of 2013. Mothered by Councilwoman Jani McCall, it played out during the summer of 2014.

The colorful event was punctuated by the brilliant political maneuvering of proponent Eran Thompson and the relentless counterattacks of the opponents, led by Dick Pence and Jeff Laszloffy, during marathon council meetings that began at sunset and ended in the gray light of morning.

When the measure died an ignoble death by a one-vote margin, there was one last rally to keep the proponent army involved and one last set of proposed amendments prepared to get the measure reconsidered. Councilwoman McCall said she wanted to continue the discussion. This is her wish come true.

The worst sin a drafter, or proponent of legislation, can commit is to proceed based on intent rather than concise language. This weakness was illuminated during the second hearing when council members questioned the origin of adding veteran status, political beliefs and obesity to the list of those that may not be discriminated against based upon their expression of sexual orientation. The answer from City Administrator Tina Volek was that at the December meeting “someone” asked they be included.

When asked what the definitions of “obesity” and “political beliefs” were, City Attorney Brent Brooks admitted he did not know. When asked if including veterans status would mean the city would not be able to discriminate in favor of veterans via hiring preference, Brooks answered that such could be surmised but state and federal laws could protect the hiring preference of veterans.

Councilwoman Becky Bird admonished, “We should not micromanage this. The courts can flesh it out later.” Councilwoman McCall said that all should “vote for this wonderful document.”

There is a total lack of professionalism in bringing forward legislation void of definitions people can rely on. Preferring that people stake their futures on activist judicial decisions is indefensible.

The alternative is to wait and see if the courts will strike any or all of the statute based on a ruling of “unconstitutional due to vagueness.” But then it would not be the City Council members’ fortunes and futures at risk.

Veterans status, obesity and political beliefs were eventually dropped from the draft document. Apparently, the pro-NDO council members thought that it was easier to allow the discrimination than do the work of defining the terms (or that voting against veterans was political suicide).

Also dropped from the draft document was the letter Q. At the first official public comment period, proponents defined themselves as LBGTQ. Unhip council members stated they knew LBGT meant Lesbian, Bi-sexual, Gay and Transgendered persons, but what was a “Q”? City Administrator Volek informed them that Q meant queer. But since queer was offensive, they had turned to Wikipedia and substituted “non-binary” for queer.

While it is priceless that the pro-NDO city staff of Billings accused the gay community of hate speech when labeling themselves, it is telling that they never reported how Non-Binaries express themselves. One internet description given is that Non-binary men often do not know what gender they are, so they wear beards, pancake makeup, dresses and boots.

Imagine if a guy looking like Paul Bunyan applied to work at a sporting goods store, but the day after his probationary period he showed up with the same beard, but his sun dress did not match his boots. The option would be to fire him and be sued out of existence or go out of business and fire everyone else.

Why this was not discussed by The Billings Gazette is obvious. It did not match their editorial position. Why the Billings Chamber of Commerce did not stand up for its members is not as obvious. Perhaps they were too busy planning a membership drive to represent current members.

The Billings Gazette did report that the complaint could be filed with the Montana Human Rights Commission though the commission could not rule on complaints based on expressions of sexual orientation. No one dared ask how, or why, a commission that cannot hear a complaint is given the first swing at prosecution.

It was reported that if the MHRC declined the case, then it could re-filed in City Court. A cursory look at the MHRC website clearly shows a multi-step process to challenge the MHRC’s finding of “no finding” could be availed the plaintiff. The process would accrue such large legal fees that the average small business could be bankrupted just getting through the process to be told it was right.

After the administrative appeal the finding can be appealed to District Court and then the Montana Supreme Court. It could then start over in City Court. City Court was authorized by the proposed ordinance to abandon the Montana Rules of Civil Procedure and institute its own rules for dealing with the accused. Why is that not important information?

The key question of how a state agency, many times legislatively barred from examining cases concerning sexual orientation, could be mandated by the City Council to examine such cases was never asked. Nor was the question of using a state appropriation for a city issue.

I asked current Senate President Jeff Essmann about this. Essmann said, “In my opinion, and regardless of how one feels about the merits, it is unlawful for an agency to undertake actions that are not specifically authorized under Montana law or to spend money in a manner that is not authorized under Montana law.”

I asked a similar question of Dennis Taylor, former Billings city administrator and current head of the MHRC. He referred the question to Annie Glover, his public relations staffer. She replied, “If a complaint is filed, the bureau is required to look for violations that are within its statutory authority.”

Its broad authority includes discrimination based on religion, race, family status and national origin. Apparently if the complainant is a nondescript gay guy, the complaint is dispatched with a finding of “no finding,” not counting appeals of the dismissal and appeals of the appeals. But if the complainant is an old, Jewish, Rumanian, black homosexual, perhaps a complaint could be amended and a case could be made.

Speaking of “judicial shopping,” this issue has been driven by the American Civil Liberties Union. Dennis Taylor is the treasurer of the Montana ACLU. Fellow MHRC commissioner Cynthia Wolken is the chairwoman of the Montana Human Rights Network and board member of Working for Equality and Economic Liberation.

It was often testified that there is not a “gay agenda.” Actually the agenda is clearly laid out in the web pages of WEEL. And Commissioner Shelly Hayes is the previous executive director of the Yellowstone Aids Project.

Once before the MHRC, by statute but contrary to the Montana Constitution, no juries are allowed, and a judge reviewing the appeal is not allowed to review the evidence. How is it that the Billings Chamber of Commerce or city staff did not inform the Council?

Decades ago the Southern Poverty Law Center honed the tactic of using the cost of defense in the legal system to destroy political opponents. It would work well in this instance as “person” in the ordinance is defined as basically any entity, including associations and corporations. So the SPLC, or the ACLU, could have brought the case “on behalf of” and had standing or furnished free legal counsel while the defendant would have to yield due to economic reality. With the MHRC admitting they feel justified in looking for avenues to prosecute Montanans of a conservative and/or religious stripe, would not persecution be a more accurate term? What if the shoe were on the other foot?

Perhaps Councilwoman Bird did have a point. Sexual expression that intimidates or causes discomfort is considered sexual harassment, and an employer may be sued for allowing it. Under this proposed ordinance it had to be tolerated. It would have been interesting to watch the courts parse that and crucify the loser for relying on the disfavored statute, ordinance or case law.

In the end, no one asked if it was the proper role of government to make the bathroom rules for the businesses and homes in Billings. But Mayor Tom Hanel said, “Not in our town.” No one asked if the Billings City Council had the authority to force someone to hire a cross-dressing homosexual even if it was totally inappropriate for the business, but the council finally said, “Not in our town.”

In a last stand to compromise the defeated proposal into a new incarnation, Council Member Brent Cromley drafted an amendment that stated if a business had fewer than two employees but did not like the council’s bathroom rules it would be exempt if it clearly posted inside and outside of the business that it did not serve based on sexual orientation.

No one moved the amendment. Hell, if Cromley had included the wearing of the Star of Judah and a scarlet “A,” I would have moved it just for fun.

Hang on to your seats, folks. Two Democrats have requested bill drafts to once again have the Legislature mandate a statewide NDO based on sexual orientation and expression with the Montana Human Rights Commission as the judge, jury and executioner.

Not in my state.

Last Updated on Thursday, 27 November 2014 12:42

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