Some Luzerne County Council members listen to public input last week. Deliberation is slated for July on the makeup of a commission that will rule on complaints under the county’s new anti-discrimination ordinance.
Jennifer Learn-Andes | Times Leader
A big unknown in Luzerne County’s new anti-discrimination ordinance — the makeup of the commission that will rule on complaints — will be publicly discussed by council next month, said council Chairman Jimmy Sabatino.
Council voted 7-4 on June 9 to enact the ordinance creating a human relations commission to rule on discrimination complaints, but a separate companion ordinance establishing the composition and protocols of the commission was not simultaneously approved.
Sabatino had said he did not want to invest time and energy focusing on the commission structure unless the anti-discrimination legislation was passed.
Although a group of citizens is collecting signatures in a quest to overturn the new anti-discrimination ordinance, Sabatino said council must still proceed as planned with the commission formation.
The county’s home rule charter provides 60 days for citizens seeking a referendum to collect the remaining signatures they need, which means it may be late August until it’s clear if the referendum effort has succeeded.
Sabatino said council cannot wait until then to act on the commission composition, powers, and responsibilities.
The anti-discrimination ordinance is set to take effect around Sept. 8, or 90 days after its June 9 passage, he said. That means council would have to approve a structure in July or August so it could seek interested members and appoint them by the time the new ordinance is activated, Sabatino said.
Commission structure
The commission is responsible for receiving and investigating complaints.
A draft ordinance circulated to council earlier this year suggested a volunteer, seven-member citizen board appointed by council.
Their terms would be four years, but initially include some two- and three-year terms to create a staggered appointment schedule.
It proposed commission members who are county residents, individuals working in the county, or business owners operating within the county, and banned the appointment of elected officers in any political party.
Sabatino said he has no problem with seven members but only supports allowing county residents to serve on the commission, noting that county residency also is a requirement of the home rule charter.
He also wants to explore parameters that ensure citizens appointed to the commission are not all from the same political party.
Clarifying the investigator’s role is the most important consideration in Sabatino’s opinion.
“To me, the person doing the investigating is the linchpin to all of this,” he said.
To reach the investigative stage, the commission must first establish that a complaint is within its jurisdiction and “sets forth a prima facie case of discrimination.” If so, the respondent must be served with a copy of the complaint and submit a written response within 60 days.
According to the council-approved ordinance:
Once those steps are completed, the commission, through its investigator, shall review the complaint, answer it and gather additional information as deemed necessary, possibly through interviews and document review.
The investigator shall be one or more commission members or an independent, non-member person “qualified to investigate.” That could include a former law enforcement officer or other person with investigation credentials.
An investigator must be named “upon each investigation” through a majority commission vote.
As part of an investigation, the commission may issue subpoenas to someone accused of an unlawful practice to furnish information and records or provide sworn testimony “as necessary to assist in its investigation.” The commission can file a petition in the county Court of Common Pleas seeking enforcement of its subpoena.
The investigator determines if there is probable cause that an unlawful practice has occurred and presents findings to the commission for its decision on whether the complaint should proceed to the next level, which could include mediation and/or a public hearing.
Violators can be found guilty of a summary offense and, upon conviction, be sentenced to pay a fine ranging from $100 to $500, it said.
Based on past county history, outside investigators may be necessary.
Council had to redo the original county ethics code because attorneys argued that the county ethics commission cannot legally serve as “prosecutor, jury, and judge” by handling both the investigation and adjudication of complaints.
As a result, council revamped the ethics code to have a rotating panel of outside enforcement attorneys handle the preliminary investigation and, if warranted, prosecute the case before the commission. County ethics commission attorneys are paid $225 per hour, with an annual cap of $25,000.
County Councilwoman LeeAnn McDermott, who voted against the ordinance, said she began reviewing the draft document on the commission’s composition and has concerns.
For example, it said the commission “shall be given sufficient administrative and legal support” from the county human resources office and law division to “carry out its powers and duties,” including assistance with complaint intake and investigation of filed complaints.
In addition to this unknown dependence on county resources, she noted the draft calls for outside legal counsel if the county itself is designated as a respondent in a complaint.
“It’s very worrisome that this could get very costly,” McDermott said.
McDermott also questioned if there will be citizens with multiple viewpoints, so the commission is not “one-sided.”
Sabatino said he and council Vice Chairwoman Brittany Stephenson are drafting a letter that will be sent to chambers of commerce, business associations, and realty organizations to make them aware of the upcoming commission formation “in the hopes of casting a wide net to get a diverse pool of people to serve on the commission.”
“It’s our hope we will get a good representation of viewpoints from all across the county,” Sabatino said.
Sabatino is not yet sure if council will start discussing the commission at its July 14 or 28 meeting.
Regarding the referendum effort, final citizen submission of the necessary verified signatures would require council to decide within 30 days if it wants to repeal the anti-discrimination ordinance.
Council’s failure to repeal the referred ordinance would result in the county election board placing the referendum on the ballot of the next election that falls at least 13 Tuesdays from then, which, based on the calendar, would most likely mean the 2027 primary.
It appears the ordinance implementation would then be on hold because the charter says any ordinance referred to voters through a referendum shall only take effect if a majority of voters are against repeal.
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Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.