Title 14
HUMAN RIGHTS*
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Cross references: For provisions regarding equality in contracting, see Chapter 20.42 of this Code. For provisions regarding relocation assistance for persons displaced by City programs or projects, see Chapter 20.84 of this Code.
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This title is intended for those provisions of the Code which relate to the preservation and protection of basic human rights.
| 14.04 | Fair Employment Practices | 14-3 |
| 14.06 | Unfair Public Accommodations Practices | 14-12 |
| 14.08 | Unfair Housing Practices | 14-18.2 |
| 14.10 | Fair Contracting Practices | 14-18.14 |
| 14.12 | Collection of Information for Law Enforcement Purposes | 14-18.21 |
| 14.14 | Human Dignity | 14-33 |
| 14.16 | Paid Sick Time and Paid Safe Time | 14-33 |
Chapter 14.04
FAIR EMPLOYMENT PRACTICES*
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Editor's Note: The marital status anti-discrimination provisions of SMC Chapters 14.04 and 14.08 applicable to employee health insurance issues have been suspended until March 1, 1990; the City is awaiting a response from the U.S. Commissioner of Internal Revenue on certain questions regarding the income tax implications of compliance with such provisions.
Statutory Reference: For comparable statutory provisions on employment discrimination, see RCW 49.44.090, 49.60.180 through 49.60.200, 43.01.100 and 28A.400.310.
Severability: If any clause, sentence, paragraph, or part of this chapter, or the application thereof to any person or circumstances, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this chapter. (Ord. 109116 § 19, 1980.)
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Sections:
Subchapter I General Provisions
14.04.010 Short title.
14.04.020 Declaration of policy.
14.04.030 Definitions.
Subchapter II Unfair Employment Practices and Exclusions
14.04.040 Unfair unemployment practices designated.
14.04.050 Exclusions from unfair practices.
Subchapter III Administration and Enforcement
14.04.060 Powers and duties of Department.
14.04.070 Powers and duties of Commission.
14.04.080 Charge filing.
14.04.090 Charge– Time for filing.
14.04.100 Charge– Amendments.
14.04.110 Charge– Notice and investigation.
14.04.120 Findings of fact and determination of reasonable cause or no reasonable cause.
14.04.130 Determination of no reasonable cause– Appeal from and dismissal.
14.04.140 Determination of reasonable cause– Conciliation and settlement of cases involving all respondents except City departments.
14.04.150 Determinations of reasonable cause– Conciliation, settlement and conclusion of cases involving City departments as respondents.
14.04.160 Appeals to the Commission from determinations of reasonable cause and orders of excess involving City departments as respondents.
14.04.170 Complaint and hearing of cases with all respondents except City departments.
14.04.180 Decision and order.
14.04.185 Enforcement by private persons.
14.04.190 Construction with other laws.
14.04.200 Cooperative agreements.
14.04.210 Violation– Penalty.
14.04.220 Application to pending charges and complaints.
Subchapter I 14.04.010 Short title.
This chapter shall constitute the "Seattle Fair Employment Practices Ordinance" and may be cited as such.
(Ord. 109116 § 1, 1980.)
Seattle fair employment practices ordinance was a valid exercise of City power and was not preempted by or in conflict with state law against discrimination. Seattle Newspaper-Web, Etc. v. City of Seattle, 24 Wn. App. 462, 604 P.2d 170 (1979).
14.04.020 Declaration of policy.
A. It is declared to be the policy of the City, in the exercise of its police powers for the protection of the public health, safety, and general welfare, and for the maintenance of peace and good government, to assure equal opportunity to all persons, free from restrictions because of race, color, sex, marital status, sexual orientation, gender identity, genetic information, political ideology, age, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of any sensory, mental or physical disability. The role of the Office for Civil Rights is to enforce the provisions of this chapter in furtherance of this policy.
B. This chapter shall not be construed to endorse specific beliefs, practices or lifestyles.
C. The provisions of this chapter shall apply to both private employers and the City, and shall be liberally construed for accomplishment of its policies and purposes; provided that, nothing in this chapter shall be construed so as to infringe upon the authority vested in the Civil Service Commission, the Public Safety Civil Service Commission, and City Departments by the City Charter.
D. Nothing in this chapter shall be deemed to deny any person the right to institute any action or to pursue any civil or criminal remedy for the violation of such person's civil rights.
E. To avoid duplication of efforts or otherwise conserve agency resources, the Director may suspend or close a case for any reason consistent with this chapter, including the reason that the case is being actively pursued in another forum.
F. Remedies under this chapter should include such relief authorized by law as may be appropriate and reasonable to make the aggrieved person whole and eliminate the unfair practice.
G. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the City, or its officers, employees or agents, for any injury or damage resulting from or by reason of any act or omission in connection with the implementation or enforcement of this chapter on the part of the City by its officers, employees or agents.
(Ord. 123527, § 1, 2011; Ord. 123014, § 1, 2009; Ord. 119628 § 20, 1999: Ord. 118392 § 23, 1996; Ord. 112903 § 1, 1986: Ord. 109116 § 2, 1980.)
14.04.030 Definitions.
When used in this chapter, unless the context otherwise requires:
A. "Charging party" means the person aggrieved by an alleged unfair employment practice or the person making a charge on another person's behalf, or the Director when the Director files a charge.
B. "City department" means any agency, office, board or commission of the City, or any Department employee acting on its behalf, but shall not mean a public corporation chartered under Ordinance 103387,1 or its successor ordinances, or any contractor, consultant, concessionaire or lessee.
C. "Commission" means the Seattle Human Rights Commission.
D. "Department" means the Office for Civil Rights of the City.
E. "Director" means the Director of the Office for Civil Rights.
F. "Disabled" means a person who has a disability.
G. 1. "Disability" means the presence of a sensory, mental, or physical impairment that:
a. Is medically cognizable or diagnosable; or
b. Exists as a record or history; or
c. Is perceived to exist whether or not it exists in fact.
2. A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.
3. For purposes of this definition, "impairment" includes, but is not limited to:
a. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
b. Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
4. Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and:
a. The impairment must have a substantially limiting effect upon the individual's ability to perform his or her job, the individual's ability to apply or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions of employment; or
b. The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.
5. For purposes of (4) of this subsection, a limitation is not substantial if it has only a trivial effect.
H. "Genetic Information" means any information regarding inherited characteristics that can be derived from a DNA-based or other laboratory test, family history, or medical examination. "Genetic information" for purposes of this chapter, does not include: (1) Routine physical measurements, including chemical, blood, and urine analysis, unless conducted purposefully to diagnose genetic or inherited characteristics; and (2) results from tests for abuse of alcohol or drugs.
I. "Discrimination," "discriminate," and/or "discriminatory act" means any act, by itself or as part of a practice, which is intended to or results in different treatment or differentiates between or among individuals or groups of individuals by reason of race, color, age, sex, marital status, sexual orientation, gender identity, genetic information, political ideology, creed, religion, ancestry, national origin, honorably discharged veteran or military status, or the presence of any disability.
J. "Employee" means any person employed by, or applying for employment with, an employer, and shall include traditional employees, temporary workers, and part-time employees.
K. "Employer" means any person who has one or more employees, or the employer's designee or any person acting in the interest of such employer.
L. "Employment agency" means any person undertaking with or without compensation to procure opportunities to work or to procure, recruit, refer, or place individuals with an employer or in employment.
M. "Gender identity" means a person's identity, expression, or physical characteristics, whether or not traditionally associated with one's biological sex or one's sex at birth, including transsexual, transvestite, and transgendered, and including a person's attitudes, preferences, beliefs, and practices pertaining thereto.
N. "Labor organization" means any organization or employee group or association in which employees participate and which exists for the purpose of (1) collective bargaining for or on behalf of employees, (2) dealing with employers concerning grievances, labor disputes, terms or conditions of employment, or (3) other mutual aid or protection of such employees in relation to their employment.
O. "Marital status" means the presence or absence of a marital relationship and includes the status of married, separated, divorced, engaged, widowed, single or cohabitating.
P. "Party" includes the person charging or making a complaint or upon whose behalf a complaint is made alleging an unfair employment practice, the person alleged or found to have committed an unfair employment practice and the Office for Civil Rights.
Q. "Person" includes one or more individuals, partnerships, associations, organizations, trade or professional associations, corporations, public corporations, cooperatives, legal representatives, trustees, trustees in bankruptcy and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent or employee, whether one or more natural persons, and further includes any department, office, agency or instrumentality of the City.
R. "Political ideology" means any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not interfere with job performance.
S. The term "reasonable accommodation" may include:
1. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
T. "Respondent" means any person who is alleged or found to have committed an unfair employment practice prohibited by this chapter.
U. The terms "because of sex," "on the basis of sex," or "by reason of sex" include, but are not limited to, because of or on the basis of or by reason of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in this chapter shall be interpreted to permit otherwise.
V. "Sexual orientation" means actual or perceived male or female heterosexuality, bisexuality, or homosexuality and includes a person's attitudes, preferences, beliefs and practices pertaining thereto.
W. "Honorably discharged veteran or military status" means:
1. A veteran, as defined in RCW 41.04.007; or
2. An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.
X. "Service animal" means an animal that provides medically necessary support for the benefit of an individual with a disability.
(Ord. 123527, § 2, 2011; Ord. 123014, § 2, 2009; Ord. 119678 § 1, 1999: Ord. 119628 § 5, 1999: Ord. 118392 § 24, 1996; Ord. 112903 § 2, 1986: Ord. 109116 § 3, 1980.)
1. Editor's Note: Ordinance 103387 is codified in Chapter 3.110 of this Code.
Subchapter II 14.04.040 Unfair employment practices designated.
It is unfair employment practice within the City for any:
A. Employer to discriminate against any person with respect to hiring, tenure, promotion, terms, conditions, wages or privileges of employment, or with respect to any matter related to employment;
B. Employer, employment agency, or labor organization to discriminate by establishing, announcing or following a policy of denying or limiting employment or membership opportunities to any person;
C. Employer, employment agency, or labor organization to print, circulate, or cause to be printed, published or circulated, any statement, advertisement, or publication relating to employment or membership, or to use any form of application therefor, which indicates any preference, limitation, specification, or discrimination based upon race, color, sex, marital status, sexual orientation, gender identity, genetic information, political ideology, age, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of any sensory, mental or physical handicap; provided that, nothing in this chapter shall prevent an employer from ascertaining and recording data as to race, color, sex, marital status, sexual orientation, gender identity, political ideology, age, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of any sensory, mental or physical handicap whether before or after employment, for the purpose of making reports specifically required by agencies of federal, state or local government for the purpose of eliminating and preventing discrimination or overcoming its effects, or for other purposes authorized by law or the rules and regulations of Washington State Human Rights Commission, the Equal Employment Opportunities Commission or the Department;
D. Employment agency to discriminate against any person with respect to any reference for employment, assignment as to job classification or otherwise;
E. Labor organization to discriminate against any person by limiting, segregating, or classifying its membership in any way that would:
1. Deprive or tend to deprive any person of employment opportunities,
2. Limit any person's employment opportunities or otherwise adversely affect such person's status as an applicant for employment or as an employee,
3. Adversely affect the wages, hours, or conditions of employment of any person;
F. Employer, employment agency, or labor organization to penalize or discriminate in any manner against any person because they opposed any practice forbidden by this chapter or because they made a charge, testified or assisted in any manner in any investigation, proceeding, or hearing initiated under the provisions of this chapter;
G. Employer, employment agency, labor organization, or any joint labor-management committee controlling apprenticeship or other training or retraining programs to discriminate against any person with respect to admission to or participation in any guidance program, apprenticeship training program or other occupational training program;
H. Publisher, firm, corporation, organization, or association printing, publishing or circulating any newspaper, magazine or other written publication, to print or cause to be printed or circulated any advertisement with knowledge that the same is in violation of Section 14.04.040 C, or to segregate and separately designate advertisements as applying only to men or women unless such designation is a bona fide occupational qualification reasonably necessary to the particular business or employment;
I. Person to:
1. Knowingly and wilfully aid, abet, initiate, compel, or coerce the doing of any act declared in this chapter to be an unfair employment practice; provided that, this subparagraph shall have no application to any act declared to be an unfair employment practice under subsection H of this section,
2. Obstruct or prevent any person from complying with the provisions of this chapter,
3. Attempt directly or indirectly to commit any act declared by this section to be an unfair employment practice.
(Ord. 123527, § 3, 2011; Ord. 123014, § 3, 2009; Ord. 119628 § 6, 1999: Ord. 109116 § 4, 1980.)
14.04.050 Exclusions from unfair practices.
A. Notwithstanding any other provision of Section 14.04.040, it is not an unfair employment practice under this chapter for an employer, employment agency, or labor organization to discriminate in those instances where religion, sex, national origin, or age is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
B. Notwithstanding any other provisions of this chapter, it is not an unfair employment practice under this chapter to act to accomplish the purposes and goals of the affirmative action plan of an employer, employment agency, or labor organization.
C. The provisions of Section 14.04.040 insofar as they declare discrimination on the basis of age to be an unfair employment practice shall not be applicable with respect to individuals who are under forty (40) years of age.
D. The provisions of Section 14.04.040 insofar as they declare discrimination on the basis of the presence of any sensory, mental or physical handicap to be an unfair employment practice, shall not apply if the particular disability prevents the proper performance of the particular worker involved.
E. Nothing in this chapter shall be construed to protect criminal conduct.
F. Notwithstanding any provision of Sections 14.04.030 and 14.04.040, it is not an unfair practice under this chapter for an employer, with a demonstrated security or public safety need, to discriminate on the basis of participation in activities which involve the use of force or violence or advocate or incite force or violence.
(Ord. 118392 § 25, 1996; Ord. 112903 § 3, 1986; Ord. 109116 § 5, 1980.)
Subchapter III 14.04.060 Powers and duties of Department.
A. The Office for Civil Rights shall receive, investigate, and pass upon charges alleging unfair practices as defined by this chapter, conciliate and settle the same by agreement, and monitor and enforce any agreements or orders resulting therefrom or from a subsequent hearing thereon under and pursuant to the terms of this chapter; and shall have such powers and duties in the performance of these functions as are defined in this chapter and otherwise necessary and proper in the performance of the same and provided for by law. The Department shall further assist the Commission and other City agencies and departments upon request in effectuating and promoting the purposes of this chapter.
B. The Director is authorized and directed to promulgate rules consistent with this chapter and the Administrative Code.1
(Ord. 118392 § 26, 1996: Ord. 109116 § 6(A), 1980.)
1. Editor's Note: The Administrative Code is codified in Chapter 3.02 of this Code.
14.04.070 Powers and duties of Commission.
The Seattle Human Rights Commission shall study, advise, and make recommendations for legislation on policies, procedures, and practices which would further the purposes of this chapter. The Commission shall hear appeals from the Director's determinations of no reasonable cause and, in cases involving respondents who are City departments, hear appeals from determinations of reasonable cause and the orders relating to the remedy therefor. It shall, where appropriate and necessary, in its judgment, hear and determine complaints jointly with the Hearing Examiner as provided in Sections 14.04.170 and 14.04.180. The Commission shall have such powers and authority in carrying out these functions as are provided for by this chapter or otherwise established by law.
(Ord. 109116 § 6(B), 1980.)
14.04.080 Charge filing.
A. A charge alleging an unfair employment practice shall be in writing on a form or in a format determined by the Department, and signed under oath or affirmation by or on behalf of a charging party before the Director, one of the Department's employees, or any other person authorized to administer oaths, and shall describe the unfair employment practice complained of and should include a statement of the dates, places and circumstances and the persons responsible for such acts and practices.
B. Whenever charges are made by or on behalf of a person claiming to be aggrieved, the person making the charge must provide the Director with the name, address and telephone number of the individual on whose behalf the charge is made. Thereafter, the Director shall verify the authorization of such charge by the person on whose behalf the charge is made and upon the request of such person may keep his or her identity confidential.
C. A charge shall not be rejected as insufficient because of failure to include all required information so long as it substantially satisfies the informational requirements necessary for processing.
D. A charge alleging an unfair employment practice or pattern of unfair practices may also be filed by the Director whenever the Director has reason to believe that any person has been engaged or is engaging in an unfair employment practice.
(Ord. 118392 § 27, 1996; Ord. 109116 § 7(A), 1980.)
14.04.090 Charge– Time for filing.
A. Charges filed under this chapter must be filed within 180 days after the occurrence of the alleged unfair employment practice with the Office for Civil Rights.
B. For purposes of this chapter, an unfair employment practice occurs, with respect to discrimination in compensation in violation of this chapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
In addition to any relief authorized by this chapter, liability may accrue and an aggrieved person may obtain relief as provided in this chapter, including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
(Ord. 123527, § 4, 2011; Ord. 118392 § 28, 1996: Ord. 109116 § 7(B), 1980.)
14.04.100 Charge– Amendments.
The charging party or the Department may amend a charge to cure technical defects or omissions; or to clarify and amplify allegations made therein; or to add allegations related to or arising out of the subject matter set forth, or attempted to be set forth, in the original charge. For jurisdictional purposes, such amendments shall relate back to the date the original charge was first filed. The charging party may also amend a charge to include allegations of additional unrelated discriminatory acts and/or retaliation which arose after filing of the original charge. The amendment must be filed within one hundred eighty (180) days after the occurrence of the additional discriminatory act and/or retaliation and prior to the Department's issuance of findings of fact and a determination with respect to the original charge. Such amendments may be made at any time during the investigation of the original charge so long as the Department will have adequate time to investigate such additional allegations and the parties will have adequate time to present the Department with evidence concerning such allegations before the issuance of findings of fact and a determination.
(Ord. 118392 § 29, 1996: Ord. 112903 § 4, 1986: Ord. 109116 § 7(C), 1980.)
14.04.110 Charge– Notice and investigation.
A. The Director shall cause to be served or mailed by certified mail, return receipt requested, a copy of the charge on the respondent within twenty (20) days after the filing of the charge and shall promptly make an investigation thereof.
B. The investigation shall be directed to ascertain the facts concerning the unfair practice alleged in the charge, and shall be conducted in an objective and impartial manner.
C. During the investigation the Director shall consider any statement of position or evidence with respect to the allegations of the charge which the charging party or the respondent wishes to submit. The Director shall have authority to sign and issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed, and access to evidence for the purpose of examination and copying, and conduct discovery procedures which may include the taking of interrogatories and oral depositions.
D. The Director may require a fact finding conference or participation in another process with the respondent and any of respondent's agents and witnesses and charging party during the investigation in order to define the issues, determine which elements are undisputed, resolve those issues which can be resolved, and afford an opportunity to discuss or negotiate settlement. Parties may have their legal counsel present if desired.
(Ord. 118392 § 30, 1996; Ord. 109116 § 8, 1980.)
14.04.120 Findings of fact and determination of reasonable cause or no reasonable cause.
A. The results of the investigation shall be reduced to written findings of fact and a determination shall be made by the Director that there is or is not reasonable cause for believing that an unfair practice has been or is being committed, which determination shall also be in writing and issued with the written findings of fact. Where a City department is a respondent the Director shall issue such findings and determination only after having submitted proposed findings and determinations to the respondent and charging party for review and comment. With respect to the findings and determination, "issued" shall be defined as signed and dated by the Director.
B. The findings of fact and determination shall be furnished promptly to the respondent and charging party.
C. Once issued to the parties, the Director's findings of fact, determination and order may not be amended or withdrawn except upon the agreement of the parties or in response to an order by the Human Rights Commission after an appeal taken pursuant to Section 14.04.130 or 14.04.160; provided, that the Director may correct clerical mistakes or errors arising from oversight or omission upon a motion from a party or upon the Director's own motion.
(Ord. 118392 § 31, 1996; Ord. 112903 § 5, 1986; Ord. 109116 § 9, 1980.)
14.04.130 Determination of no reasonable cause– Appeal from and dismissal.
If a determination is made that there is no reasonable cause for believing an unfair employment practice under this chapter has been committed, the charging party shall have the right to appeal such determination to the Commission within thirty (30) days of the date the determination is signed by the Director by filing a written statement of appeal with the Commission. The Commission shall promptly deliver a copy of the statement to the Department and respondent and shall promptly consider and act upon such appeal by either affirming the Director's determination or remanding it to the Director with appropriate instructions. In the event no appeal is taken or such appeal results in affirmance, the determination of the Director shall be final and the charge deemed dismissed and the same shall be entered on the records of the Department.
(Ord. 118392 § 32, 1996: Ord. 109116 § 10, 1980.)
14.04.140 Determination of reasonable cause– Conciliation and settlement of cases involving all respondents except City departments.
A. In all cases except a case in which a City department is the respondent, if a determination is made that reasonable cause exists to believe that an unfair practice has occurred, the Director shall endeavor to eliminate the unfair practice by conference, conciliation and persuasion. Conditions of settlement may include (but are not limited to) the elimination of the unfair employment practice, hiring, reinstatement or upgrading with or without back pay, lost benefits, attorney's fees, admittance or restoration to membership in a labor organization, admittance to participation in a guidance, apprentice training or retraining program or such other action which will effectuate the purposes of this chapter, including action which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000.00). Any settlement agreement shall be reduced to writing and signed by the Director and the respondent. An order shall then be entered by the Director setting forth the terms of the agreement. Copies of such order shall be delivered to all affected parties.
B. In case of failure to reach an agreement and of conciliation and upon a written finding to that effect furnished to the charging party and respondent, except a case in which a City department is a respondent, the Director shall promptly cause to be delivered the entire investigatory file, including the charge and any and all findings made, to the City Attorney for further proceedings and hearing under this chapter pursuant to Section 14.04.170.
(Ord. 117615 § 1, 1995: Ord. 112903 § 7, 1986; Ord. 109116 § 11, 1980.)
14.04.150 Determinations of reasonable cause– Conciliation, settlement and conclusion of cases involving City departments as respondents.
In all cases in which a City department is a respondent:
A. A determination of reasonable cause by the Director shall be deemed a finding that an unfair employment practice has been committed by respondent and is dispositive of this issue for all future proceedings under this chapter, unless appealed, reversed and remanded as provided in this chapter.
B. Within sixty (60) days of a determination of reasonable cause, the Director shall confer with the parties and determine an appropriate remedy, which remedy may include (but is not limited to) hiring, reinstatement or upgrading with or without back pay, lost benefits, attorney's fees, admittance to participation in a guidance, apprentice training or retraining program, or such other action as will effectuate the purposes of this chapter, including action which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000.00). Such remedy shall be reduced to writing in an order of the Director.
C. The charging party must sign a release in the form and manner requested by the Department, releasing the City from further liability for acts giving rise to the charge in order to obtain the benefits of the remedy provided under this section and before payment can be made. Without such release, the Director's order with respect to the charging party's individual relief shall have no force and effect. In such event the Director shall notify the parties involved in writing.
D. In all cases where the remedy determined by the Director before or after any appeal includes a monetary payment which exceeds the sum of Five Thousand Dollars ($5,000.00), the charge or claim, the Director's determination, order, the charging party's signed release and such further documentation as may be required shall be presented to the City Council for passage by separate ordinance. If the City Council fails or refuses to appropriate the amount ordered by the Director within ninety (90) days, the Director shall certify the case to the Hearing Examiner for a hearing to determine the appropriate monetary relief in the case which determination shall be final and binding upon the City.
E. Where the Director's order includes a monetary payment of Five Thousand Dollars ($5,000.00) or less, such payment shall be made under the authority and in the form and manner otherwise provided for by law for payment of such claims.
(Ord. 117615 § 2, 1995: Ord. 112903 § 7, 1986; Ord. 109116 § 12, 1980.)
14.04.160 Appeals to the Commission from determinations of reasonable cause and orders of excess involving City departments as respondents.
In all cases in which a City department is a respondent:
A. The charging party or respondent may appeal the Director's order and determination of reasonable cause to the Commission within thirty (30) days of the Director's order by filing a written statement of appeal with the Commission. Such statement shall state specifically the grounds on which it is based and the reasons the determination or order or both is in error.
B. The Commission shall promptly mail a copy of the statement to the Department and to the other party and shall promptly consider and act upon such appeal by either affirming the Director's determination or order or remanding it to the Director with appropriate instructions.
C. The filing of an appeal shall stay the enforcement of any remedy provided for in the Director's determination or order during the pendency of the appeal.
D. In such appeal, the Commission shall consider only the record submitted to it by the Department and written statements of positions by the parties involved and, in its discretion, oral presentation. The Commission shall reverse the Director's determination or order only upon a finding that it is clearly erroneous.
(Ord. 117615 § 3, 1995: Ord. 109116 § 13, 1980.)
14.04.170 Complaint and hearing of cases with all respondents except City departments.
A. Following submission of the investigatory file from the Director in cases involving all respondents under Section 14.04.140, the City Attorney shall prepare a complaint against such respondent relating to the charge and facts discovered during the investigation thereof and prosecute the same in the name and on behalf of the Department and the City at a hearing therefor before the Hearing Examiner sitting alone or with representatives of the Commission as provided in this chapter and to appear for and represent the interests of the Department and the City at all subsequent proceedings; provided, if the City Attorney determines that there is no legal basis for a complaint to be filed or for proceedings to continue, a statement of the reasons therefor shall be filed with the Department, charging party and the respondent.
B. The complaint shall be served on respondent in the usual manner provided by law for service of complaints and filed with the Seattle Hearing Examiner. A copy of such complaint shall be furnished charging party.
C. Within twenty (20) days of the service of such complaint upon it, the respondent shall file its answer with the Hearing Examiner and serve a copy of the same on the City Attorney.
D. Upon the filing of the complaint, the Hearing Examiner shall promptly establish a date for the hearing of such complaint and give notice thereof to the Commission, the City Attorney and respondent, and shall thereafter hold a public hearing on the complaint, which hearing shall commence no earlier than ninety (90) days nor later than one hundred twenty (120) days from the filing of the complaint, unless otherwise ordered by the Hearing Examiner.
E. After the filing of a complaint with the Hearing Examiner, it may be amended only with the permission of the Hearing Examiner, which permission shall be granted when justice will be served thereby and all parties are allowed time to prepare their case with respect to additional or expanded charges which they did not and could not have reasonably foreseen would be in issue at the hearing.
F. The hearing shall be conducted by a Hearing Examiner from the Office of Hearing Examiner, or a hearing examiner pro tempore appointed by the Hearing Examiner from a list approved by the Commission, sitting alone or with representatives of the Commission if any are designated. Such hearings shall be conducted in accordance with written rules and procedures consistent with this ordinance and the Administrative Code of the City (Ordinance 102228).1
G. The Commission, within thirty (30) days after notice of the date of hearing from the Hearing Examiner, at its discretion, may appoint two (2) of its members who have not otherwise been involved in the charge, investigation, fact finding, or other resolution and proceeding on the merits of the case, who have not formed an opinion on the merits of the case, and who otherwise have no pecuniary, private or personal interest or bias in the matter, to hear the case with the Hearing Examiner. If the Commission has designated representatives they shall each have an equal vote with the Hearing Examiner, except the Hearing Examiner shall be the chairperson of the panel and make all evidentiary rulings. Should a question arise as to previous involvement, interest or bias of an appointed Commissioner, the Hearing Examiner shall resolve the issue in conformance with the law on the subject.
(Ord. 109116 § 14, 1980.)
1. Editor's Note: The Administrative Code is codified in Chapter 3.02 of this Code.
14.04.180 Decision and order.
A. Within thirty (30) days after conclusion of the hearing, the Hearing Examiner presiding at the hearing (or the Examiner and Commissioners as the case may be) shall prepare a written decision and order. The final decision shall be filed as a public record with the City Clerk, and copies thereof mailed to each party of record and to the Department.
B. Such decision shall contain a brief summary of the evidence considered and shall contain findings of fact, conclusions of law upon which the decision is based, and an order detailing the relief deemed appropriate, together with a brief statement of the reasons therefor.
C. In the event the Hearing Examiner (or a majority of the panel composed of the Examiner and Commissioners), determines that a respondent has committed an unfair employment practice under this chapter, the Hearing Examiner (or panel majority) may order the respondent to take such affirmative action or provide for such relief as is deemed necessary to correct the practice, effectuate the purpose of this chapter, and secure compliance therewith, including but not limited to hiring, reinstatement, or upgrading with or without back pay, lost benefits, attorney's fees, admittance or restoration to membership in a labor organization, admittance to participation in a guidance, apprentice training or retraining program, or such other action which will effectuate the purposes of this chapter, including action which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000.00). Back pay liability shall not accrue from a date more than two (2) years prior to the initial filing of the charge.
D. Respondent shall comply with the provisions of any order affording relief and shall furnish proof of compliance to the Department as specified in the order. In the event respondent refuses or fails to comply with the order, the Director shall notify the City Attorney of the same and the City Attorney shall invoke the aid of the appropriate court to secure enforcement or compliance with the order.
(Ord. 117615 § 4, 1995: Ord. 112903 § 8, 1986; Ord. 109116 § 15, 1980.)
14.04.185 Enforcement by private persons.
A. Any person who claims to have been injured by an unfair employment practice may commence a civil action in Superior Court or any other court of competent jurisdiction, not later than three (3) years after the occurrence of the alleged unfair employment practice or ninety (90) days after a determination of reasonable cause by the Director, whichever occurs last, to obtain appropriate relief with respect to such unfair employment practice. In an action brought under this section, the court having jurisdiction may, upon written findings by the judge that the action was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including attorneys fees, incurred in opposing such action pursuant to RCW 4.84.185.
B. A complaint may be filed under this section whether or not an administrative charge has been filed under SMC Section 14.04.090, and without regard to the status of such charge, but if the Department has obtained a pre-finding or post-finding settlement or conciliation agreement with the consent of the charging party, no action may be filed under this section with respect to the alleged unfair employment practice which forms the basis for such complaint except for the purpose of enforcing the terms of the agreement. To preclude such filing, the charging party must be provided with written notice that consent to a pre-finding or post-finding settlement or conciliation agreement will terminate the charging party's right to file a civil action under this section.
C. 1. Subject to the provisions of subsection C2, upon the filing of a civil action involving the same claim or arising from the same facts and circumstances, whether under this subchapter or similar law, a complaint of an unfair employment practice may be administratively closed by the Director.
2. In the event that a court dismisses a private cause of action on grounds that would not preclude pursuit of a charge under this subchapter, the charging party may request, within ninety (90) days of the entry of the Court's order of dismissal, that the Department reopen a previously filed charged. Upon such request, the Director may reopen a case that was administratively closed upon the filing of a civil action. If the Department closes a case based on a "no reasonable cause" finding, the case shall not be reopened except as provided through appeal pursuant to SMC Section 14.04.030.
3. No complainant or aggrieved person may secure relief from more than one (1) governmental agency, instrumentality or tribunal for the same harm or injury.
4. Where the complainant or aggrieved person elects to pursue simultaneous claims in more than one (1) forum, the factual and legal determinations issued by the first tribunal to rule on the claims may, under the doctrines of "res judicata" or "collateral estoppel," be binding on all or portions of the claims pending before other tribunals.
5. No civil action may be commenced under this section with respect to an alleged unfair employment practice which forms the basis of a complaint if a hearing on the record has been commenced by The City of Seattle Office of the Hearing Examiner. To preclude such filing, a charging party must be provided with written notice at least thirty (30) days prior to the commencement of a hearing before The City of Seattle Office of the Hearing Examiner that the commencement of such a hearing will terminate the charging party's right to file a civil action.
D. In a civil action under this section, if the court, or jury, finds that an unfair employment practice has occurred, the court may grant such relief as may be awarded by the hearing examiner under this chapter or is authorized by the Washington Law Against Discrimination, Chapter 49.60 RCW, as amended. Damages awarded under this section for humiliation and mental suffering are not subject to the limitation of SMC Section 14.04.140 A or SMC Section 14.04.150 B.
E. Upon time application, the City Attorney may intervene in such civil action, if the City Attorney certifies that the case is of general public importance, and may obtain such relief as would be available in an action brought under SMC Sections 14.04.140 and 14.04.180. Such intervention shall not be permitted in an action in which the City is a defendant.
F. It is the intent of The City of Seattle, in enacting this section, to provide private judicial remedies for violations of this chapter that are as expansive as possible consistent with the powers granted by the Constitution and Laws of The State of Washington. In the event that any provision or aspect of this section is adjudicated to be invalid or unenforceable under applicable law, the validity or enforceability of the remaining provisions shall be unaffected.
(Ord. 119678 § 2, 1999; Ord. 119379 § 1, 1999.)
14.04.190 Construction with other laws.
Nothing in this chapter shall be construed to invalidate or restrict or deny any right or remedy any person may have under state or federal law or preclude any cause of action in court otherwise provided for the violation of any person's civil rights; nor shall this chapter be construed to preclude any person aggrieved from seeking judicial review of any final administrative decision or order made under this chapter affecting such person.
(Ord. 109116 § 16, 1980.)
14.04.200 Cooperative agreements.
Nothing in this chapter shall be interpreted to prevent the receiving, referring, or other processing of complaints, in accordance with a cooperative agreement with the Washington State Human Rights Commission, the Equal Employment Opportunity Commission or with other agencies concerned with the enforcement of laws against discrimination.
(Ord. 109116 § 17, 1980.)
14.04.210 Violation– Penalty.
It is unlawful for any person to wilfully engage in an unfair practice under this chapter or wilfully resist, prevent, impede or interfere with the Director or Hearing Examiner in the performance of their duties under this chapter, or to fail, refuse, or neglect to comply with any lawful order of the Director or Hearing Examiner. Conduct made unlawful by this section constitutes a violation subject to the provisions of Chapter 12A.01 and Chapter 12A.02 of the Seattle Criminal Code (Ordinance 102843, as amended),1 and any person convicted thereof may be punished by a civil fine or forfeiture not to exceed Five Hundred Dollars ($500).
(Ord. 109116 § 18, 1980.)
1. Editor's Note: Chapter 12A.01 of the Criminal Code is codified in Chapter 12A.02 of this Code; Chapter 12A.02 is codified in Chapter 12A.04 of this Code.
14.04.220 Application to pending charges and complaints.
The procedures for administration and enforcement under this chapter shall apply to charges pending which have not had a date certain set for hearing as of the effective date of this ordinance.1 However, this section shall not be construed to invalidate any administrative action taken or determinations and orders made on pending charges because of the procedures provided by this chapter.
(Ord. 109116 § 20, 1980.)
1. Editor's Note: Ord. 109116 became effective July 17, 1980.
Chapter 14.06 14.06.010 Short title and purposes.
14.06.020 Definitions.
14.06.030 Unfair practices.
14.06.040 Enforcement by private persons.
14.06.050 Charge– Filing.
14.06.060 Charge– Amendments.
14.06.070 Notice of charge and investigation.
14.06.080 Findings of fact and determination of reasonable cause or no reasonable cause.
14.06.090 Determination of no reasonable cause– Appeal from and dismissal.
14.06.100 Determination of reasonable cause– Conciliation.
14.06.110 Complaint and hearing.
14.06.120 Decision and order.
14.06.130 Enforcement of Department and Hearing Examiner orders and agreements.
14.06.140 Unlawful conduct and penalties.
14.06.150 Cooperative agreements.
14.06.160 Application to pending charges and complaints.
14.06.010 Short title and purposes.
A. This chapter shall be known as and may be cited as the "Public Accommodations Ordinance." The general purposes of this chapter are to assure all persons equal opportunity to the full enjoyment of places of public accommodation, to eliminate and to prevent unlawful discrimination in places of public accommodation and to provide enforcement mechanisms for the accomplishment of such purposes. The provisions of this chapter shall be liberally construed to accomplish these purposes. The Seattle Office for Civil Rights shall enforce the provisions of this chapter to further this policy.
B. This chapter shall not be construed to endorse specific beliefs, practices or lifestyles.
C. Nothing in this chapter shall be deemed to deny any person the right to institute any action or to pursue any civil or criminal remedy for the violation of such person's civil rights.
D. To avoid duplication of efforts or otherwise conserve agency resources, the Director may suspend or close a case for any reason consistent with this chapter, including the reason that the case is being actively pursued in another forum. The commencement of a civil action by the Department to enjoin any unfair practice in violation of this chapter shall not preclude the initiation or continuation of administrative proceedings under this chapter.
E. Remedies under this chapter should include such relief authorized by law as may be appropriate and reasonable to provide appropriate temporary or preliminary relief as well as to make the aggrieved person whole and eliminate the unfair practice.
F. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the City, or its officers, employees or agents, for any injury or damage resulting from or by reason of any act or omission in connection with the implementation or enforcement of this chapter on the part of the City by its officers, employees or agents.
(Ord. 121593 § 29, 2004.)
14.06.020 Definitions.
Definitions as used in this chapter, unless additional meaning clearly appears from the context, shall have the meanings subscribed:
A. "Aggrieved person" includes any person who:
1. Claims to have been injured by an unfair practice prohibited by this chapter; or
2. Believes that he or she will be injured by an unfair practice prohibited by this chapter that is about to occur.
B. "Charge" means a claim or set of claims alleging an unfair practice or practices prohibited under this chapter.
C. "Charging party" means any person who files a charge alleging an unfair practice under this chapter, including the Director.
D. "City" means The City of Seattle.
E. "City department" means any agency, office, board or commission of the City, or any department employee acting on its behalf, but shall not mean a public corporation chartered under Ch. 3.110 SMC, or any contractor, consultant, or concessionaire or lessee.
F. "Commission" means the Seattle Human Rights Commission.
G. "Department" means the Seattle Office for Civil Rights.
H. "Director" means the Director of the Seattle Office for Civil Rights or the Director's designee.
I. "Disabled" means a person who has a disability.
J. 1. "Disability" means the presence of a sensory, mental, or physical impairment that:
a. Is medically cognizable or diagnosable; or
b. Exists as a record or history; or
c. Is perceived to exist whether or not it exists in fact.
2. A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.
3. For purposes of this definition, "impairment" includes, but is not limited to:
a. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
b. Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
K. "Discriminate" means to do any act which constitutes discrimination.
L. "Discrimination" means any conduct, whether by single act or as part of a practice, the effect of which is to adversely affect or differentiate between or among individuals or groups of individuals, because of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of any disability or the use of a service animal by a disabled person.
M. "Full enjoyment of" means the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, free of discrimination as defined in this chapter.
N. "Gender identity" means a person's identity, expression, or physical characteristics, whether or not traditionally associated with one's biological sex or one's sex at birth, including transsexual, transvestite, and transgendered, and including a person's attitudes, preferences, beliefs, and practices pertaining thereto.
O. "Hearing Examiner" means the Seattle Hearing Examiner.
P. "Marital status" means the presence or absence of a marital relationship and includes the status of married, separated, divorced, engaged, widowed, single or cohabiting.
Q. "Owner" means any person who owns, leases, subleases, rents, operates, manages, has charge of, controls or has the right of ownership, possession, management, charge, or control of real property on their own behalf or on behalf of another.
R. "Parental status" means being a parent, step-parent, adoptive parent, guardian, foster parent or custodian of a minor child or children under the age of 18 years, or the designee with written permission of a parent or other person having legal custody of a child or children under the age of 18 years which child or children shall reside permanently or temporarily or shall seek full enjoyment of any place of public accommodation with such parent or other person. In addition, parental status shall refer to any person who is pregnant or who is in the process of acquiring legal custody of a minor child under the age of 18 years.
S. "Party" means the person charging or making a charge or complaint or upon whose behalf a complaint is made alleging an unfair practice, the person alleged or found to have committed an unfair practice, and the Seattle Office for Civil Rights.
T. "Person" means one or more individuals, partnerships, organizations, trade or professional associations, corporations, legal representatives, trustees, trustees in bankruptcy and receivers. It includes any owner, lessee, proprietor, manager, agent or employee whether one or more natural persons, and any political or civil subdivision or agency or instrumentality of the City.
U. "Place of public accommodation" means any place, licensed or unlicensed, where the public gathers, congregates, or assembles for amusement, recreation or public purposes, or any place, store, or other establishment which supplies goods or services with or without charge to the general public. "Place of public accommodation" includes, but is not limited to, the following types of services or facilities: hotels, or other establishments which provide lodging to transient guests; restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, public washrooms, public elevators, or other facilities principally engaged in selling or offering for sale food for consumption upon or off the premises; motion picture houses, theatres, concert halls, sport arenas, stadiums or other places of exhibition or entertainment; bowling alleys, pool halls, arcades and amusement parks; retail establishments; transportation carriers; barber shops and beauty shops; bars or taverns or other facilities engaged in selling or offering for sale alcoholic beverages for consumption upon the premises; and public burial facilities.
V. "Political ideology" means any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not cause substantial and material disruption of the property rights of the provider of a place of public accommodation.
W. "Respondent" means any person who is alleged or found to have committed an unfair practice prohibited by this chapter.
X. "Service animal" means an animal that provides medically necessary support for the benefit of an individual with a disability.
Y. "Sexual orientation" means actual or perceived male or female heterosexuality, bisexuality, or homosexuality, and includes a person's attitudes, preferences, beliefs and practices pertaining thereto.
Z. "Honorably discharged veteran or military status" means:
1. A veteran, as defined in RCW 41.04.007; or
2. An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.
(Ord. 123527, § 5, 2011; Ord. 123014, § 4, 2009; Ord. 121593 § 29, 2004.)
14.06.030 Unfair practices.
A. Unfair practices as defined in this chapter are contrary to the public peace, health, safety and general welfare and are prohibited by the City in the exercise of its police power.
B. It is an unfair practice for any person to discriminate in a place of public accommodation by:
1. Requiring, directly or indirectly, any person to pay a larger sum than the usual uniform rates; or
2. Refusing or withholding admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging; or
3. Denying, directly or indirectly, the full enjoyment of any available goods, services, accommodations, facilities, privileges or advantages; or
4. Printing, circulating, issuing, displaying, posting, mailing or otherwise causing, directly or indirectly, to be published a statement, advertisement or sign which indicates directly or indirectly that the full enjoyment of the goods, services, facilities, privileges, advantages, and accommodations will be refused, withheld, denied or in some manner limited or restricted or that an individual's patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable or undesirable; or
5. Harassing, intimidating, or otherwise abusing any person or person's friends or associates because of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of any disability, or the use of a trained dog guide or service animal by a disabled person with the purpose or effect of denying to such person the rights granted in this chapter; or
6. Harassing, intimidating, retaliating, or obstructing a person in any manner because such person complied with or proposed to comply with this chapter or any order issued under this chapter, or filed a charge or complaint, testified, or assisted in any investigation, proceeding or hearing under this chapter; or
7. Coercing, intimidating, threatening or otherwise interfering with any person in the exercise or enjoyment of or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected under this chapter; or
8. Applying any economic sanctions or denying membership privileges because of compliance with this chapter; or
9. Aiding, abetting, inciting, compelling or coercing the doing of any act defined in this chapter to be an unfair practice; or
10. Attempting to commit any act defined in this chapter to be an unfair practice.
C. Compliance with conditions and limitations established by law and applicable to all persons regardless of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of a disability, or the use of a trained dog guide or service animal by a disabled person is not an unfair practice under this section.
D. Exemptions. Nothing in this chapter shall be construed to:
1. Apply to any non-commercial facility operated or maintained by a bona fide religious institution;
2. Include or apply to any institute, bona fide club or place of accommodation which is by its nature distinctly private, provided however, when or where public use is permitted that use shall be covered under this chapter;
3. Prohibit treating disabled persons more favorably than non-disabled persons;
4. Prohibit offering discounts, special prices, or other special arrangements for minor children, families, or senior citizens, or imposing age limits up to the age of 21;
5. Protect criminal conduct; or
6. Prohibit taking any actions reasonably necessary to protect persons or property.
(Ord. 123014, § 5, 2009; Ord. 121593 § 29, 2004.)
14.06.040 Enforcement by private persons.
A. Any charging party or aggrieved person may commence a civil action in King County Superior Court or any other court of competent jurisdiction not later than two (2) years after the occurrence or termination of an alleged unfair practice, whichever occurs last, to obtain appropriate relief with respect to such unfair practice.
B. The computation of such two-year period shall not include any time during which an administrative proceeding under this chapter was pending with respect to a complaint or charge under this chapter alleging an unfair practice based on the same facts or occurrences. For purposes of this subsection, an "administrative proceeding" begins with the filing of a charge with the Department and ends with the completion of an appeal filed with the Commission or a final order issued by the Director, whichever occurs last.
C. A civil complaint may be filed under this section whether or not an administrative charge has been filed under SMC 14.06.060. No civil action may be commenced under this section with respect to an alleged unfair practice that forms the basis of a complaint if the Hearing Examiner's Office has commenced a hearing on the record. The City Attorney's Office shall provide written notice to the charging party at least 30 days prior to the commencement of a hearing before the Hearing Examiner that the commencement of such a hearing will terminate the charging party's right to file a civil action.
D. Any person who claims to have been injured by, or believes that he or she will be injured by an unfair practice that is the subject matter of the civil action filed under this section may intervene as of right in the civil action.
E. (1) Subject to the provisions of subsection E(2), upon the filing of a civil action involving the same claim or arising from the same facts and circumstances, whether under this chapter or similar law, a charge of an unfair practice may be administratively closed by the Director. Upon request by a charging party, the Director may keep a charge of unfair practice open pending commencement of a trial in a civil action.
(2) In the event that a court dismisses a private cause of action on grounds that would not preclude pursuit of a charge under this subchapter, the charging party may request, within 90 days of the entry of the court's order of dismissal, that the Department reopen a previously filed charge. Upon such request, the Director may reopen a case that was administratively closed upon the filing of a civil action.
(3) No charging party or aggrieved person may secure relief from more than one governmental agency, instrumentality or tribunal for the same harm or injury.
F. In a civil action under this section, if the court finds that an unfair practice has occurred or is about to occur, the court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate. The court may also award actual damages, including damages for humiliation and mental suffering, damages for loss of the right to be free from discrimination in places of public accommodation, and any other appropriate remedy. The court may also allow reasonable attorney's fees and costs to the prevailing party.
G. Upon timely application, the City Attorney may intervene in such civil action, if the City Attorney certifies that the case is of general public importance, and may obtain such relief as would be available in an action brought under SMC 14.06.110.
H. It is the intent of the City of Seattle, in enacting this section, to provide private judicial remedies for violations of this chapter that are as expansive as possible consistent with the powers granted by the Constitution and Laws of the State of Washington.
(Ord. 121593 § 29, 2004.)
14.06.050 Charge– Filing.
A. An aggrieved person may, not later than one hundred eighty (180) days after an alleged unfair practice has occurred or terminated, file a charge with the Director alleging such unfair practice. The charge shall be in writing and signed under oath or affirmation before the Director, one of the Department's employees, or any other person authorized to administer oaths. The charge shall describe the alleged unfair practice and should include a statement of the dates, places and circumstances, and the persons responsible for such acts and practices. Upon the filing of a charge alleging an unfair practice, the Director shall cause to be served upon the charging party a written notice acknowledging the filing, and notifying the charging party of the time limits and choice of forums provided in this chapter.
B. A charge shall not be rejected as insufficient because of failure to include all required information if the Department determines that the charge substantially satisfies the informational requirements necessary for processing.
C. A charge alleging an unfair practice or pattern of unfair practices under this chapter may also be filed by the Director whenever the Director has reason to believe that any person has been engaged or is engaging in an unfair practice under this chapter.
(Ord. 121593 § 29, 2004.)
14.06.060 Charge– Amendments.
A. The charging party or the Department may amend a charge:
1. To cure technical defects or omissions;
2. To clarify allegations made in the charge;
3. To add allegations related to or arising out of the subject matter set forth or attempted to be set forth in the charge; or
4. To add as a charging party a person who is, during the course of the investigation, identified as an aggrieved person; or
5. To add or substitute as a respondent a person who was not originally named as a respondent, but who is, during the course of the investigation, identified as a respondent. For jurisdictional purposes, such amendments shall relate back to the date the original charge was first filed.
B. The charging party may amend a charge to include allegations of retaliation that arose after the filing of the original charge. Such amendment must be filed within one hundred eighty (180) days after the occurrence of the retaliation, and prior to the Department's issuance of findings of fact and determination with respect to the original charge. Such amendments may be made at any time during the investigation of the original charge so long as the Department will have adequate time to investigate the additional allegations and the parties will have adequate time to present the Department with evidence concerning the additional allegations before the issuance of findings of fact and a determination.
C. When a charge is amended to add or substitute a respondent, the Director shall serve upon the new respondent within twenty days:
1. The amended charge;
2. The notice required under section 14.06.070(A); and
3. A statement of the basis for the Director's belief that the new respondent is properly named as a respondent. For jurisdictional purposes, amendment of a charge to add or substitute a respondent shall relate back to the date the original charge was first filed.
(Ord. 121593 § 29, 2004.)
14.06.070 Notice of charge and investigation.
A. The Director shall promptly, and in any event within twenty (20) days of filing of the charge, cause to be served on or mailed, by certified mail, return receipt requested, to the respondent, a copy of the charge along with a notice advising the respondent of respondent's procedural rights and obligations under this chapter. A respondent may file with the Department an answer to the charge no later than ten (10) days after receiving notice of the charge. The Director shall promptly investigate the charge.
B. The investigation shall be directed to ascertain the facts concerning the unfair practice alleged in the charge, and shall be conducted in an objective and impartial manner.
C. During the period beginning with the filing of the charge and ending with the issuance of the findings of fact, the Department shall, to the extent feasible, engage in settlement discussions with respect to the charge. A pre-finding settlement agreement arising out of the settlement discussions shall be an agreement between the respondent and the charging party, and is subject to approval by the Director. Each pre-finding settlement agreement is a public record. Failure to comply with the pre-finding settlement agreement may be enforced under SMC 14.06.130.
D. During the investigation the Director shall consider any statement of position or evidence with respect to the allegations of the charge which the charging party or the respondent wishes to submit, including the respondent's answer to the charge. The Director shall have authority to sign and issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed, and access to evidence for the purpose of examination and copying, and conduct discovery procedures which may include the taking of interrogatories and oral depositions.
E. The Director may require a fact finding conference or participation in another process with the respondent and any of respondent's agents and witnesses and charging party during the investigation to define the issues, determine any undisputed elements, resolve any issues, and afford an opportunity to discuss or negotiate settlement. Parties may have their legal counsel present if desired.
(Ord. 121593 § 29, 2004.)
14.06.080 Findings of fact and determination of reasonable cause or no reasonable cause.
A. The results of the investigation shall be reduced to written findings of fact and a determination shall be made by the Director that there is or is not reasonable cause for believing that an unfair practice has been, is being or is about to be committed, which determination shall also be in writing and issued with the written findings of fact. The findings and determination are "issued" when signed by the Director.
B. The findings of fact and determination shall be mailed promptly to the respondent and charging party.
C. Once issued to the parties, the Director's findings of fact, determination and order may not be amended or withdrawn except upon the agreement of the parties or in response to an order by the Commission after an appeal taken pursuant to Section 14.06.090; provided, that the Director may correct clerical mistakes or errors arising from oversight or omission upon a motion from a party or upon the Director's own motion.
(Ord. 121593 § 29, 2004.)
14.06.090 Determination of no reasonable cause– Appeal from and dismissal.
If a determination is made that there is no reasonable cause for believing an unfair practice under this chapter has been, is being or is about to be committed, the charging party may appeal such determination to the Commission within thirty (30) days of the date the determination is signed by the Director by filing a written statement of appeal with the Commission. The Commission shall promptly deliver a copy of the statement to the Department and respondent and shall promptly consider and act upon such appeal by either affirming the Director's determination or, if the Commission believes the Director should investigate further, remanding it to the Director with a request for specific further investigation. In the event no appeal is taken or such appeal results in affirmance or if the Commission has not decided the appeal within sixty (60) days from the date the appeal statement is filed, the determination of the Director shall be final and the charge deemed dismissed and the same shall be entered on the records of the Department. Any party aggrieved by the final dismissal may appeal the order on the record to an appropriate court.
(Ord. 121593 § 29, 2004.)
14.06.100 Determination of reasonable cause– Conciliation.
A. If the Director determines that reasonable cause exists to believe that an unfair practice has occurred, is occurring or is about to occur, the Director shall endeavor to eliminate the unfair practice through efforts to reach conciliation. Conditions of conciliation may include, but are not limited to, the elimination of the unfair practice, affirmative recruiting or advertising measures, payment of actual damages, damages for loss of the right to full enjoyment of any place of public accommodation, and reasonable attorney's fees and costs or such other remedies that will carry out the purposes of this chapter, including remedies which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000.00).
B. Any post-finding conciliation agreement shall be an agreement between the charging party and the respondent and shall be subject to the approval of the Director. The Director shall enter an order setting forth the terms of the agreement which may include a requirement that the parties report to the Director on the matter of compliance. Copies of such order shall be delivered to all affected parties.
C. If conciliation fails and no agreement can be reached, the Director shall issue a written finding to that effect and furnish a copy of the finding to the charging party and to the respondent. Upon issuance of the finding, except a case in which a City department is a respondent, the Director shall promptly cause to be delivered the entire investigatory file, including the charge and any and all findings made, to the City Attorney for further proceedings under SMC 14.06.110.
(Ord. 121593 § 29, 2004.)
14.06.110 Complaint and hearing.
A. Following submission of the investigatory file from the Director, the City Attorney shall, except as set forth in subsection B of this section, prepare a complaint against such respondent relating to the charge and facts discovered during the Department's investigation. The City Attorney shall file the complaint with the Hearing Examiner in the name of the Department and represent the interests of the Department and the City at all subsequent proceedings.
B. If the City Attorney determines that there is no legal basis for a complaint to be filed or proceedings to continue, a statement of the reasons therefor shall be filed with the Department. The Director shall then dismiss the charge. Any party aggrieved by the dismissal may appeal the dismissal to an appropriate court.
C. The City Attorney shall serve a copy of the complaint on respondent and furnish a copy of the complaint to the charging party and to the Department.
D. Within twenty (20) days of the service of such complaint upon it, the respondent shall file its answer with the Hearing Examiner and serve a copy of the same on the City Attorney.
E. Upon the filing of the complaint, the Hearing Examiner shall promptly establish a hearing date and give notice thereof to the Commission, the City Attorney and respondent. The hearing shall commence no earlier than ninety (90) days nor later than one hundred twenty (120) days from the filing of the complaint, unless otherwise ordered by the Hearing Examiner.
F. After the complaint is filed with the Hearing Examiner, it may be amended only with the permission of the Hearing Examiner, which permission shall be granted when justice will be served and all parties are allowed time to prepare their case with respect to additional or expanded charges.
G. The hearing shall be conducted by the Hearing Examiner, a deputy hearing examiner or a hearing examiner pro tempore appointed by the Hearing Examiner from a list approved by the Commission, sitting alone or with Commissioners from the Commission if any are designated. Such hearings shall be conducted in accordance with written rules and procedures consistent with this chapter and the Administrative Code, Ch. 3.02 SMC.
H. The Commission, within thirty (30) days after receiving the date of hearing from the Hearing Examiner, at its discretion, may appoint two (2) Commissioners who have not otherwise been involved in the charge, investigation, fact finding, or other resolution and proceeding on the merits of the case, who have not formed an opinion on the merits of the case, and who otherwise have no pecuniary, private or personal interest or bias in the matter, to hear the case with the Hearing Examiner. Each Commissioner shall have an equal vote with the Hearing Examiner. The Hearing Examiner shall be the chairperson of the panel and make all evidentiary rulings. The Hearing Examiner shall resolve any question of previous involvement, interest or bias of an appointed Commissioner in conformance with the law on the subject. Any reference in this chapter to a decision, order, or other action of the Hearing Examiner shall include, when applicable, the decision, order, or other action of a panel constituted under this subsection.
(Ord. 121593 § 29, 2004.)
14.06.120 Decision and order.
A. Within thirty (30) days after conclusion of the hearing, the Hearing Examiner shall prepare a written decision and order. The final decision shall be filed as a public record with the City Clerk, and copies mailed to each party of record and to the Department.
B. Such decision shall contain a brief summary of the evidence considered and shall contain findings of fact, conclusions of law upon which the decision is based, and an order detailing the relief deemed appropriate, together with a brief statement of the reasons supporting the decision.
C. In the event the Hearing Examiner or a majority of the panel composed of the Hearing Examiner and designated Commissioners determines that a respondent has committed an unfair practice under this chapter, the Hearing Examiner may order the respondent to take such affirmative action or provide for such relief as is deemed necessary to correct the practice and carry out the purpose of this chapter. The Hearing Examiner may grant any relief that could be ordered by a court, including actual damages, damages for loss of the right to full enjoyment of any place of public accommodation, injunctive or equitable relief, reasonable attorney's fees and costs and any other appropriate remedy, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000.00). An order may include a requirement for a report on the matter of compliance.
D. Any person aggrieved by a final order of the Hearing Examiner may appeal the order on the record to an appropriate court.
E. The Department in the performance of its functions may enlist the aid of all departments of City government, and all said departments are directed to fully cooperate with the Department.
(Ord. 121593 § 29, 2004.)
14.06.130 Enforcement of Department and Hearing Examiner orders and agreements.
A. In the event a City respondent fails to comply with any final order of the Director or of the Hearing Examiner, a copy of the order shall be transmitted to the Mayor who shall take appropriate action to secure compliance with the final order.
B. In the event a respondent fails to comply with any final order issued by the Hearing Examiner not directed to the City or to any City department, the Director shall refer the matter to the City Attorney for the filing of a civil action to enforce such order.
C. Whenever the Director has reasonable cause to believe that a respondent has breached a settlement or conciliation agreement, the Director shall refer the matter to the City Attorney for the filing of a civil action to enforce such agreement.
D. If no action has been filed under subsection B or C of this section within ninety (90) days after referral to the City Attorney, any person entitled to relief under the final order or a party to a settlement or conciliation agreement may file a civil action in the superior court to enforce the order or agreement.
(Ord. 121593 § 29, 2004.)
14.06.140 Unlawful conduct and penalties.
It is unlawful for any person to willfully resist, prevent, impede or interfere with the Director or Hearing Examiner in the performance of their duties under this chapter. A violation of this section is a misdemeanor subject to penalties as set forth in SMC 12A.02.070B.
(Ord. 121593 § 29, 2004.)
14.06.150 Cooperative agreements.
Nothing in this chapter shall be interpreted to prevent the receiving, referring, or other processing of complaints, in accordance with a cooperative agreement with the Washington State Human Rights Commission as authorized and mandated by RCW 49.60.226 or with other agencies concerned with the enforcement of laws against discrimination.
(Ord. 121593 § 29, 2004.)
14.06.160 Application to pending charges and complaints.
The procedures for administration and enforcement under this chapter shall apply to charges pending which have not had a date certain set for hearing as of the effective date of the ordinance codified in this chapter. However, this section shall not be construed to invalidate any administrative action taken or determinations and orders made on pending charges because of the procedures provided by this chapter.
(Ord. 121593 § 29, 2004.)
Chapter 14.08 ------------
Cross-reference: For provisions regarding the duties of owners and tenants, see Chapter 22.206 of this Code.
Statutory Reference: For comparable statutory provisions on housing discrimination, see RCW 49.60.222 et seq.
Severability: If any clause, sentence, paragraph, or part of this chapter, or the application thereof to any person or circumstances, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this chapter.
(Ord. 113610 § 8, 1987: Ord. 109208 § 13, 1980.)
------------
Sections:
14.08.010 Short title and purposes.
14.08.015 Seattle Open Housing Poster.
14.08.020 Definitions.
14.08.030 Unfair practices forbidden.
14.08.040 Unfair practices– Generally.
14.08.045 Retaliation, harassment, or coercion.
14.08.060 Discrimination in real estate-related transactions.
14.08.070 Unfair inquiries or advertisements.
14.08.080 Unfair inducement to sell or rent– Blockbusting; Steering.
14.08.095 Enforcement by private persons.
14.08.100 Charge– Filing.
14.08.110 Time for filing charges.
14.08.120 Charge– Amendments.
14.08.130 Notice of charge and investigation.
14.08.135 Procedure for investigations.
14.08.140 Findings of fact and determination of reasonable cause or no reasonable cause.
14.08.150 Determination of no reasonable cause– Appeal from and dismissal.
14.08.160 Determination of reasonable cause– Conciliation.
14.08.165 Election of civil action in cases of unfair practices.
14.08.170 Complaint and hearing.
14.08.180 Decision and order.
14.08.185 Civil penalty in cases alleging unfair practices.
14.08.187 Enforcement of Department and Hearing Examiner orders and agreements.
14.08.190 Exclusions.
14.08.200 Unlawful conduct and penalties.
14.08.205 Construction with other laws.
14.08.210 Cooperative agreements.
14.08.215 Application to pending charges and complaints.
14.08.010 Short title and purposes.
A. This chapter shall be known as and may be cited as the "Open Housing Ordinance." The general purposes of this chapter are to promote the availability and accessibility of housing and real property to all persons; to prohibit unfair practices in real property transactions, whether direct or indirect, which inexcusably and unjustifiably deny those persons equal rights and opportunities in acquiring, disposing of or occupying real property and to provide enforcement mechanisms for the accomplishment of such purposes. The provisions of this chapter shall be liberally construed to accomplish these purposes. The Department shall enforce the provisions of this chapter to further this policy.
B. This chapter shall not be construed to endorse specific beliefs, practices or lifestyles.
C. Nothing in this chapter shall be deemed to deny any person the right to institute any action or to pursue any civil or criminal remedy for the violation of such person's civil rights, except as provided in SMC 14.08.095(C).
D. To avoid duplication of efforts or otherwise conserve agency resources, the Director may suspend or close a case for any reason consistent with this chapter, including the reason that the case is being actively pursued in another forum. The commencement of a civil action by the Department to enjoin any unfair practice in violation of this chapter shall not preclude the initiation or continuation of administrative proceedings under this chapter.
E. Remedies under this chapter should include such relief authorized by law as may be appropriate and reasonable to provide appropriate temporary or preliminary relief as well as to make the aggrieved person whole and eliminate the unfair practice.
F. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the City, or its officers, employees or agents, for any injury or damage resulting from or by reason of any act or omission in connection with the implementation or enforcement of this chapter on the part of the City by its officers, employees or agents.
(Ord. 122257, § 1, 2006; Ord. 121593 § 1, 2004; Ord. 118392 § 33, 1996; Ord. 116818 § 1, 1993: Ord. 113610 § 1, 1987; Ord. 113144 § 1, 1986: Ord. 112903 § 9, 1986: Ord. 104839 § 1, 1975.)
14.08.015 Seattle Open Housing Poster.
All persons required to post a fair housing poster pursuant to 24 CFR 110 shall also post a Seattle Open Housing Poster at the same locations required in the federal regulation. A person who fails to post a Seattle Open Housing Poster as required in this section is subject to a fine of One Hundred Twenty-Five Dollars ($125) for a first violation and a fine of Five Hundred Dollars ($500) for each subsequent violation. The Seattle Open Housing Poster shall provide a notice that it is illegal in the City of Seattle to discriminate against any person because of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a section 8 program, the presence of any disability or the use of a trained dog guide or service animal by a disabled person. The Department shall adopt a rule or rules to enforce this section which shall include the availability of such posters from the Department.
(Ord. 123014, § 6, 2009; Ord. 122257, § 2, 2006.)
14.08.020 Definitions.
Definitions as used in this chapter, unless additional meaning clearly appears from the context, shall have the meanings subscribed:
A. "Aggrieved person" includes any person who:
1. Claims to have been injured by an unfair practice prohibited by this chapter; or
2. Believes that he or she will be injured by an unfair practice prohibited by this chapter that is about to occur.
B. "Blockbusting" means, for profit, to promote, induce, or attempt to promote or induce any person to, engage in a real estate transaction by representing that a person or persons of a particular race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, or who participates in a Section 8 program, or who is disabled, or who is a disabled person who uses a service animal has moved or may move into the neighborhood.
C. "Charge" means a claim or set of claims alleging an unfair practice or practices prohibited under this chapter.
D. "Charging party" means any person who files a charge alleging an unfair practice under this chapter, including the Director.
E. "City" means The City of Seattle.
F. "City department" means any agency, office, board or commission of the City, or any department employee acting on its behalf, but shall not mean a public corporation chartered under Ch. 3.110 SMC, or any contractor, consultant, or concessionaire or lessee.
G. "Commission" means the Seattle Human Rights Commission.
H. "Department" means the Seattle Office for Civil Rights.
I. "Director" means the Director of the Seattle Office for Civil Rights or the Director's designee.
J. "Disabled" means a person who has a disability.
K. 1. "Disability" means the presence of a sensory, mental, or physical impairment that:
a. Is medically cognizable or diagnosable; or
b. Exists as a record or history; or
c. Is perceived to exist whether or not it exists in fact.
2. A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.
3. For purposes of this definition, "impairment" includes, but is not limited to:
a. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
b. Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
L. "Discriminate" means to do any act which constitutes discrimination.
M. "Discrimination" means any conduct, whether by single act or as part of a practice, the effect of which is to adversely affect or differentiate between or among individuals or groups of individuals, because of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of any disability or the use of a service animal by a disabled person.
N. "Dual-filed" means any charge alleging an unfair practice that is filed with both the Department of Housing and Urban Development and the Seattle Office for Civil Rights without regard to which of the two agencies initially processed the charge.
O. "Dwelling" means any building, structure, or portion thereof which is occupied as, or is designed or intended for occupancy as, a residence by one or more individuals or families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.
P. "Gender identity" means a person's identity, expression, or physical characteristics, whether or not traditionally associated with one's biological sex or one's sex at birth, including transsexual, transvestite, and transgendered, and including a person's attitudes, preferences, beliefs, and practices pertaining thereto.
Q. "Hearing Examiner" means the Seattle Hearing Examiner.
R. "Lender" means any bank, insurance company, savings or building and loan association, credit union, trust company, mortgage company, or other person or agent thereof, engaged wholly or partly in the business of lending money for the financing or acquisition, construction, repair or maintenance of real property.
S. "Marital status" means the presence or absence of a marital relationship and includes the status of married, separated, divorced, engaged, widowed, single or cohabiting.
T. "Occupant" means any person who has established residence or has the right to occupy real property.
U. "Owner" means any person who owns, leases, subleases, rents, operates, manages, has charge of, controls or has the right of ownership, possession, management, charge, or control of real property on their own behalf or on behalf of another.
V. "Parental status" means being a parent, step-parent, adoptive parent, guardian, foster parent or custodian of a minor child or children under the age of 18 years, or the designee with written permission of a parent or other person having legal custody of a child or children under the age of 18 years, which child or children shall reside permanently or temporarily with such parent or other person. In addition, parental status shall refer to any person who is pregnant or who is in the process of acquiring legal custody of a minor child under the age of 18 years.
W. "Party" means the person charging or making a charge or complaint or upon whose behalf a complaint is made alleging an unfair practice, the person alleged or found to have committed an unfair practice, and the Seattle Office for Civil Rights.
X. "Person" means one or more individuals, partnerships, organizations, trade or professional associations, corporations, legal representatives, trustees, trustees in bankruptcy and receivers. It includes any owner, lessee, proprietor, manager, agent or employee, whether one or more natural persons, and any political or civil subdivision or agency or instrumentality of the City.
Y. "Political ideology" means any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not interfere with the property rights of the landowner as it applies to housing.
Z. "Prospective borrower" means any person who seeks to borrow money to finance the acquisition, construction, repair, or maintenance of real property.
AA. "Prospective occupant" means any person who seeks to purchase, lease, sublease or rent real property.
BB. "Real estate agent, salesperson or employee" means any person employed by, associated with or acting for a real estate broker to perform or assist in the performance of any or all of the functions of a real estate broker.
CC. "Real estate broker" means any person who for a fee, commission, or other valuable consideration, lists for sale, sells, purchases, exchanges, leases or subleases, rents, or negotiates or offers or attempts to negotiate the sale, purchase, exchange, lease, sublease or rental of real property of another, or holds themselves out as engaged in the business of selling, purchasing, exchanging, listing, leasing, subleasing, or renting real property of another, or collects the rental for use of real property of another.
DD. "Real estate transaction" means the sale, purchase, conveyance, exchange, rental, lease, sublease, assignment, transfer or other disposition of real property.
EE. "Real estate-related transaction" means any of the following:
1. The making or purchasing of loans or providing other financial assistance:
a. For purchasing, constructing, improving, repairing, or maintaining real property, or
b. Secured by real property; or
2. The selling, brokering, or appraising of real property; or
3. The insuring of real property, mortgages, or the issuance of insurance related to any real estate transaction.
FF. "Real property" means dwellings, buildings, structures, real estate, lands, tenements, leaseholds, interests in real estate cooperatives, condominiums, and any interest therein.
GG. "Respondent" means any person who is alleged to have committed an unfair practice prohibited by this chapter.
HH. "Section 8 program" means a federal, state or local government program in which a tenant's rent is paid partially by the government program (through a direct contract between the government program and the owner or lessor of the real property), and partially by the tenant.
II. "Service animal" means an animal that provides medically necessary support for the benefit of an individual with a disability.
JJ. "Sexual orientation" means actual or perceived male or female heterosexuality, bisexuality, or homosexuality, and includes a person's attitudes, preferences, beliefs and practices pertaining thereto.
KK. "Steering" means to show or otherwise take an action which results, directly or indirectly, in steering a person or persons to any section of the City or to a particular real property in a manner tending to segregate or maintain segregation on the basis of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, participation in a Section 8 program, the presence of any disability or the use of a service animal by a disabled person.
LL. "Honorably discharged veteran or military status" means:
1. A veteran, as defined in RCW 41.04.007; or
2. An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.
(Ord. 123527, § 6, 2011; Ord. 123014, § 7, 2009; Ord. 121593 § 2, 2004; Ord. 119628 § 7, 1999: Ord. 118392 § 34, 1996; Ord. 116818 § 2, 1993: Ord. 114864 § 1, 1989: Ord. 113610 § 2, 1987: Ord. 113144 § 2, 1986; Ord. 112903 § 10, 1986; Ord. 108205 § 1, 1979: Ord. 104839 § 2, 1975.)
1. Editor's Note: Ordinance 103387 is codified at Chapter 3.110 of this Code.
14.08.030 Unfair practices forbidden.
Unfair practices as defined in this chapter are contrary to the public peace, health, safety and general welfare and are prohibited by the City in the exercise of its police power.
(Ord. 121593 § 3, 2004; Ord. 116818 § 3, 1993: Ord. 113610 § 3, 1987: Ord. 109050 § 1(part), 1980: Ord. 108205 § 2(part), 1979: Ord. 104839 § 3(1), 1975.)
14.08.040 Unfair practices– Generally.
A. It is an unfair practice for any person to discriminate by:
1. Undertaking or refusing to engage in a real estate transaction or otherwise deny or withhold such real property; or
2. Refusing to negotiate a real estate transaction; or
3. Representing that such real property is not available for inspection, sale, rental, or lease when in fact it is so available; or
4. Expelling or evicting an occupant from real property or otherwise making unavailable or denying a dwelling; or
5. Applying different terms, conditions or privileges of a real estate transaction, including but not limited to the setting of rates for rental or lease, or establishment of damage deposits, or other financial conditions for rental or lease, or in the furnishing of facilities or services in connection with such transaction.
B. It is an unfair practice for any real estate broker, real estate agent, salesperson, or employee to discriminate by:
1. Refusing or intentionally failing to list real property for sale, rent, or lease; or
2. Refusing or intentionally failing to show real property listed for sale, rental, or lease; or
3. Refusing or intentionally failing to accept and/or transmit any reasonable offer to purchase, lease, or rent real property.
C. It is an unfair practice to discriminate by denying a person access to, or membership or participation in, a multiple listing service or real estate brokers' organization or other service, or to discriminate in the terms and conditions of such access, membership, or participation.
D. It is an unfair practice to prohibit reasonable modifications needed by a disabled tenant. Whether or not the landlord permits tenants in general to make alterations or additions to a structure or fixtures, it is an unfair practice for a landlord to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy any dwelling, or to refuse to allow a person to make alterations or additions to existing premises occupied or to be occupied by a disabled person which are necessary to make the rental property accessible by disabled persons, under the following conditions:
1. The landlord is not required to pay for the alterations, additions, or restoration unless otherwise required by federal law;
2. The landlord has the right to demand assurances that all modifications will be performed pursuant to local permit requirements, in a professional manner, and in accordance with applicable building codes;
3. The landlord may, where it is reasonable to do so, condition permission for modification on the tenant's agreement to restore the interior of the premises to its pre-existing condition, reasonable wear and tear excepted.
E. It is an unfair practice under this chapter for any person to design or construct a building or structure that does not conform with 42 U.S.C. § 3604, the Washington State Barrier Free Act, WAC Ch. 51-40 or Ch. 51-50 as required by chapters 19.27 RCW and 70.92 RCW, other regulations adopted under 42 U.S.C. 3604 and chapters 19.27 RCW and 70.92 RCW, any other applicable laws pertaining to access by disabled persons, or any rules or regulations promulgated thereunder. If the requirements of the applicable laws differ, those which require greater accessibility for disabled persons shall govern.
(Ord. 121593 § 4, 2004; Ord. 119628 § 8, 1999: Ord. 116818 § 4, 1993: Ord. 114864 § 2, 1989: Ord. 113610 § 4, 1987: Ord. 112903 § 11, 1986: Ord. 109050 § 1(part), 1980: Ord. 108205 § 2(part), 1979: Ord. 104839 § 3(2), 1975.)
14.08.045 Retaliation, harassment, or coercion.
A. It is an unfair practice for any person to:
1. Aid, abet, incite, compel, or coerce the doing of any act defined in this chapter as an unfair practice; or to intimidate, harass, retaliate, obstruct or discriminate against a person in any manner because such person complied with or proposed to comply with this chapter or any order issued under this chapter or filed a charge or complaint, testified, or assisted in any investigation, proceeding, or hearing under this chapter or attempt to commit any act defined in this chapter to be an unfair practice; or apply any economic sanctions or deny membership privileges because of compliance with this chapter; or
2. Coerce, intimidate, threaten, or otherwise interfere with any person who exercises or enjoys any right granted or protected under this chapter or who aids or encourages another in the exercise or enjoyment of such rights.
B. It is an unfair practice for any person, whether or not acting for profit, to harass, intimidate, discriminate against or otherwise abuse any person or person's friends or associates because of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of any disability, or the use of a trained dog guide or service animal by a disabled person with the purpose or effect of denying to such person the rights granted in this chapter or the right to quiet or peaceful possession or enjoyment of any real property.
C. Any practice which has the purpose or effect of denying a person the right to be free from discrimination in real estate transactions or the right to quiet or peaceful possession or enjoyment of real property, or of interfering with a person's compliance with this chapter, or of interfering with a person's filing of a charge or assisting in any proceeding related to an unfair practice under this chapter, is an unfair practice.
(Ord. 123014, § 8, 2009; Ord. 121593 § 5, 2004; Ord. 116818 § 5, 1993.)
14.08.060 Discrimination in real estate-related transactions.
It is an unfair practice for any lender, or any agent or employee thereof, to whom application is made for financial assistance for the purchase, lease, acquisition, construction, rehabilitation, repair, or maintenance of any real property, or any other person whose business includes engaging in real estate related transactions, to:
A. Discriminate against any person, prospective occupant or occupant of real property in the granting, withholding, extending, making available, modifying or renewing, or in the rates, terms, conditions or privileges of a real estate related transaction, or in the extension of services in connection therewith; or
B. Discriminate by using any form of application for a real estate related transaction or making any record of inquiry in connection with applications for a real estate related transaction which expresses, directly or indirectly, an intent to discriminate unless required or authorized by local, state or federal laws or agencies to prevent discrimination in real property; provided that, nothing in this provision shall prohibit any party to a credit transaction from requesting designation of marital status for the purpose of considering application of community property law to the individual case or from taking reasonable action thereon or from requesting information regarding age, parental status, or participation in a Section 8 program when such information is necessary to determine the applicant's ability to repay the loan.
(Ord. 121593 § 8, 2004; Ord. 119628 § 17, 1999: Ord. 116818 § 8, 1993: Ord. 114864 § 4, 1989: Ord. 112903 § 12, 1986; Ord. 109050 § 1(part), 1980: Ord. 108205 § 2(part), 1979: Ord. 104839 § 3(4), 1975.)
14.08.070 Unfair inquiries or advertisements.
It is an unfair practice for any person to:
A. Require any information, make or keep any record, or use any form of application containing questions or inquiries concerning race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of a disability, or the use of a trained dog guide or service animal by a disabled person in connection with a real estate transaction unless used solely:
1. For making reports required by agencies of the federal, state or local government to prevent and eliminate discrimination or to overcome its effects or for other purposes authorized by federal, state or local agencies or laws or rules adopted thereunder,
2. As to "marital status," for the purpose of determining applicability of community property law to the individual case, or
3. As to "age," for the purpose of determining that the applicant has attained the age of majority, or in the case of housing exclusively for older persons as described in SMC 14.08.190 E, for the purpose of determining the eligibility of the applicant;
B. Publish, print, circulate, issue or display or cause to be published, printed, circulated, issued or displayed, any communication, notice, advertisement, statement, or sign of any kind relating to a real estate transaction or listing of real property which indicates directly or indicates an intention to make any preference, limitation or specification based on race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, the participation in a Section 8 program, the presence of a disability, or the use of a service animal by a disabled person.
(Ord. 123527, § 7, 2011; Ord. 123014, § 9, 2009; Ord. 121593 § 9, 2004; Ord. 119628 § 9, 1999: Ord. 116818 § 9, 1993: Ord. 114864 § 5, 1989: Ord. 112903 § 13, 1986; Ord. 109050 § 1(part), 1980: Ord. 108205 § 2(part), 1979: Ord. 104839 § 3(5), 1975.)
14.08.080 Unfair inducement to sell or rent– Blockbusting; Steering.
It is an unfair practice for any owner, real estate agent, salesperson or employee, real estate broker, or any other person, to discriminate by engaging in blockbusting or steering.
(Ord. 121593 § 10, 2004; Ord. 119628 § 10, 1999: Ord. 116818 § 10, 1993: Ord. 114864 § 6, 1989: Ord. 112903 § 14, 1986: Ord. 109050 § 1(part), 1980: Ord. 108205 § 2(part), 1979: Ord. 104839 § 3(6), 1975.)
14.08.095 Enforcement by private persons.
A. Any charging party or aggrieved person may commence a civil action in King County Superior Court or any other court of competent jurisdiction not later than two (2) years after the occurrence or the termination of an alleged unfair practice, whichever occurs last, to obtain appropriate relief with respect to such unfair practice.
B. The computation of such two-year period shall not include any time during which an administrative proceeding under this chapter was pending with respect to a complaint or charge under this chapter alleging an unfair practice based on the same facts or occurrences. For purposes of this subsection, an "administrative proceeding" begins with the filing of a charge with the Department and ends with the completion of an appeal filed with the Commission or a final order issued by the Director, whichever occurs last.
C. A civil complaint may be filed under this section whether or not an administrative charge has been filed under SMC 14.08.100, but if the Department or the U.S. Department of Housing and Urban Development has obtained a settlement or conciliation agreement with the consent of the charging party, no civil action may be filed under this section with respect to the alleged unfair practice which forms the basis for such complaint except for the purpose of enforcing the terms of such agreement. No civil action may be filed under this section with respect to an alleged unfair practice which forms the basis of a complaint if the Hearing Examiner has commenced a hearing on the record. The City Attorney's office shall provide written notice to the charging party at least 30 days prior to the commencement of a hearing before the Hearing Examiner that the commencement of such a hearing will terminate the charging party's right to file a civil action.
D. Any person who claims to have been injured by, or believes that he or she will be injured by an unfair practice which is the subject matter of the civil action filed under this section may intervene as of right in the civil action.
E. (1) Subject to the provisions of subsection E(2), upon the filing of a civil action involving the same claim or arising from the same facts and circumstances, whether under this chapter or similar law, a charge of an unfair practice may be administratively closed by the Director. Upon request by a charging party, the Director may keep a charge of unfair practice open pending commencement of a trial in a civil action.
(2) In the event that a court dismisses a private cause of action on grounds that would not preclude pursuit of a charge under this subchapter, the charging party may request, within 90 days of the entry of the court's order of dismissal, that the Department reopen a previously filed charge. Upon such request, the Director may reopen a charge that was administratively closed upon the filing of a civil action.
(3) No charging party or aggrieved person may secure relief from more than one governmental agency, instrumentality or tribunal for the same harm or injury.
F. In a civil action under this section, if the court finds that an unfair practice has occurred or is about to occur, the court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate. The court may also award actual damages, including damages for humiliation and mental suffering, damages for the loss of the right to be free from discrimination in real estate transactions, and any other appropriate remedy set forth in the federal Fair Housing Amendments Act of 1988 42 U.S.C. § 3601 et seq.). The court may also allow reasonable attorney's fees and costs to the prevailing party.
G. Relief granted under this section shall not affect any contract, sale, encumbrance, or lease consummated before the granting of such relief and involving a bona fide purchaser, encumbrancer, or tenant, without actual notice of the filing of a charge or civil action under this chapter.
H. Upon timely application, the City Attorney may intervene in such civil action, if the City Attorney certifies that the case is of general public importance, and may obtain such relief as would be available in an action brought under SMC 14.08.165 and damages and penalties as contemplated by SMC 14.08.180 and 14.08.185.
(Ord. 121593 § 12, 2004; Ord. 116818 § 12, 1993.)
14.08.100 Charge– Filing.
A. An aggrieved person may file a charge with the Director alleging an unfair practice. The charge shall be in writing and signed under oath or affirmation before the Director, one of the Department's employees, or any other person authorized to administer oaths. The charge shall describe the alleged unfair practice and should include a statement of the dates, places and circumstances, and the persons responsible for such acts and practices. Upon the filing of a charge alleging an unfair practice, the Director shall cause to be served upon the charging party a written notice acknowledging the filing, and notifying the charging party of the time limits and choice of forums provided in this chapter.
B. A charge shall not be rejected as insufficient because of failure to include all required information if the Department determines that the charge substantially satisfies the informational requirements necessary for processing.
C. A charge alleging an unfair practice or pattern of unfair practices under this chapter may also be filed by the Director whenever the Director has reason to believe that any person has been engaged or is engaging in an unfair practice under this chapter.
(Ord. 121593 § 13, 2004; Ord. 116818 § 13, 1993: Ord. Ord. 109208 § 1(part), 1980: Ord. 108205 § 3(part), 1979: Ord. 106476 § 1(part), 1977: Ord. 104839 § 4(A), 1975.)
14.08.110 Time for filing charges.
Charges filed under this chapter must be filed with the Department within one year after the alleged unfair practice has occurred or terminated.
(Ord. 123527, § 8, 2011; Ord. 121593 § 14, 2004; Ord. 118392 § 35, 1996: Ord. 116818 § 14, 1993: Ord. 109208 § 1(part), 1980: Ord. 108205 § 3(part), 1979: Ord. 106476 § 1(part), 1977: Ord. 104839 § 4(B), 1975.)
14.08.120 Charge– Amendments.
A. The charging party or the Department may amend a charge:
1. To cure technical defects or omissions;
2. To clarify allegations made in the charge;
3. To add allegations related to or arising out of the subject matter set forth or attempted to be set forth in the charge;
4. To add as a charging party a person who is, during the course of the investigation, identified as an aggrieved person; or
5. To add or substitute as a respondent a person who was not originally named as a respondent, but who is, during the course of the investigation, identified as a respondent. For jurisdictional purposes, such amendments shall relate back to the date the original charge was first filed.
B. The charging party may amend a charge to include allegations of retaliation which arose after the filing of the original charge. Such amendment must be filed within one year after the occurrence of the retaliation, and prior to the Department's issuance of findings of fact and determination with respect to the original charge. Such amendments may be made at any time during the investigation of the original charge so long as the Department will have adequate time to investigate the additional allegations and the parties will have adequate time to present the Department with evidence concerning the additional allegations before the issuance of findings of fact and a determination.
C. When a charge is amended to add or substitute a respondent, the Director shall serve upon the new respondent within twenty days:
1. The amended charge;
2. The notice required under section 14.08.130(A); and
3. A statement of the basis for the Director's belief that the new respondent is properly named as a respondent. For jurisdictional purposes, amendment of a charge to add or substitute a respondent shall relate back to the date the original charge was first filed.
(Ord. 123527, § 9, 2011; Ord. 121593 § 15, 2004; Ord. 118392 § 36, 1996; Ord. 116818 § 15, 1993: Ord. 113144 § 3, 1986: Ord. 112903 § 16, 1986: Ord. 109208 § 1(part), 1980: Ord. 108205 § 3(part) 1979: Ord. 106476 § 1(part), 1977: Ord. 104839 § 4(C), 1975.)
14.08.130 Notice of charge and investigation.
A. The Director shall promptly, and in any event within twenty (20) days of filing of the charge, cause to be served on or mailed, by certified mail, return receipt requested, to the respondent, a copy of the charge along with a notice advising the respondent of respondent's procedural rights and obligations under this chapter. The Director shall promptly make an investigation of the charge.
B. The investigation shall be directed to ascertain the facts concerning the unfair practice alleged in the charge, and shall be conducted in an objective and impartial manner.
C. During the period beginning with the filing of the charge and ending with the issuance of the findings of fact, the Department shall, to the extent feasible, engage in settlement discussions with respect to the charge. A pre-finding settlement agreement arising out of the settlement discussions shall be an agreement between the charging party and the respondent and shall be subject to approval by the Director. Each pre-finding settlement agreement is a public record. Failure to comply with the pre-finding settlement agreement may be enforced under SMC 14.08.187.
D. During the investigation the Director shall consider any statement of position or evidence with respect to the allegations of the charge which the charging party or the respondent wishes to submit, including the respondent's answer to the charge. The Director shall have authority to sign and issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed, and access to evidence for the purpose of examination and copying, and conduct discovery procedures which may include the taking of interrogatories and oral depositions.
E. The Director may require a fact finding conference or participation in another process with the respondent and any of respondent's agents and witnesses and charging party during the investigation in order to define the issues, determine which elements are undisputed, resolve those issues which can be resolved, and afford an opportunity to discuss or negotiate settlement. Parties may have their legal counsel present if desired.
(Ord. 121593 § 16, 2004; Ord. 118392 § 37, 1996; Ord. 116818 § 16, 1993: Ord. 109208 § 2, 1980: Ord. 104839 § 5, 1975.)
14.08.135 Procedure for investigations.
A. A respondent may file with the Department an answer to the charge no later than ten (10) days after receiving notice of the charge.
B. The Director shall commence investigation of the charge within thirty (30) days after the filing of the charge. The investigation shall be completed within one hundred (100) days after the filing of the charge, unless it is impracticable to do so. If the Director is unable to complete the investigation within one hundred (100) days after the filing of the charge, the Director shall notify the charging party and the respondent of the reasons therefor. The Director shall make final administrative disposition of a charge within one (1) year of the date of filing of the charge, unless it is impracticable to do so. If the Director is unable to make a final administrative disposition within one (1) year of the filing of the charge, the Director shall notify the charging party and the respondent of the reasons therefor.
C. If the Director determines that it is necessary to carry out the purposes of this chapter, the Director may, in writing, request the City Attorney to seek prompt judicial action for temporary or preliminary relief to enjoin any unfair practice pending final disposition of a charge.
(Ord. 121593 § 17, 2004; Ord. 116818 § 17, 1993.)
14.08.140 Findings of fact and determination of reasonable cause or no reasonable cause.
A. The results of the investigation shall be reduced to written findings of fact and a determination shall be made by the Director that there is or is not reasonable cause for believing that an unfair practice has been, is being or is about to be committed, which determination shall also be in writing and issued with the written findings of fact. The findings and determination are "issued" when signed by the Director.
B. The findings of fact and determination shall be mailed promptly to the respondent and charging party.
C. Once issued to the parties, the Director's findings of fact, determination and order may not be amended or withdrawn except upon the agreement of the parties or in response to an order by the Commission after an appeal taken pursuant to Section 14.08.150; provided, that the Director may correct clerical mistakes or errors arising from oversight or omission upon a motion from a party or upon the Director's own motion.
(Ord. 121593 § 18, 2004; Ord. 118392 § 38, 1996; Ord. 112903 § 17, 1986; Ord. 109208 § 3, 1980: Ord. 104839 § 6, 1975.)
14.08.150 Determination of no reasonable cause– Appeal from and dismissal.
A. If a determination is made that there is no reasonable cause for believing an unfair practice under this chapter has been, is being or is about to be committed, the charging party may appeal such determination to the Commission within thirty (30) days of the date the determination is signed by the Director by filing a written statement of appeal with the Commission. The Commission shall promptly deliver a copy of the statement to the Department and respondent and shall promptly consider and act upon such appeal by either affirming the Director's determination or, if the Commission believes the Director should investigate further, remanding it to the Director with a request for specific further investigation. In the event no appeal is taken, or such appeal results in affirmance or if the Commission has not decided the appeal within sixty (60) days from the date the appeal statement is filed, the determination of the Director shall be final and the charge deemed dismissed and the same shall be entered on the records of the Department. Any party aggrieved by the final dismissal may appeal the order on the record to an appropriate court.
(Ord. 121593 § 19, 2004; Ord. 118392 § 39, 1996: Ord. 116818 § 18, 1993: Ord. 109208 § 4, 1980: Ord. 104839 § 7, 1975.)
14.08.160 Determination of reasonable cause– Conciliation.
A. If the Director determines that reasonable cause exists to believe that an unfair practice has occurred, is occurring or is about to occur, the Director shall endeavor to eliminate the unfair practice through efforts to reach conciliation. Conditions of conciliation may include, but are not limited to, the elimination of the unfair practice, rent refunds or credits, reinstatement to tenancy, affirmative recruiting or advertising measures, payment of actual damages, damages for loss of the right to be free from discrimination in real estate transactions, and reasonable attorney's fees and costs or such other remedies that will carry out the purposes of this chapter, including remedies which could be ordered by a court. The Director may also require payment of a civil penalty as set forth in SMC 14.08.185.
B. Any post-finding conciliation agreement shall be an agreement between the charging party and the respondent and shall be subject to the approval of the Director. The Director shall enter an order setting forth the terms of the agreement which may include a requirement that the parties report to the Director on the matter of compliance. Copies of such order shall be delivered to all affected parties.
C. If conciliation fails and no agreement can be reached, the Director shall issue a written finding to that effect and furnish a copy of the finding to the charging party and to the respondent. Upon issuance of the finding, except a case in which a City department is a respondent, the Director shall promptly cause to be delivered the entire investigatory file, including the charge and any and all findings made, to the City Attorney for further proceedings and hearing under this chapter pursuant to Section 14.08.170.
(Ord. 121593 § 20, 2004; Ord. 117615 § 5, 1995: Ord. 116818 § 19, 1993: Ord. 112903 § 18, 1986; Ord. 109208 § 5, 1980: Ord. 104839 § 8, 1975.)
14.08.165 Election of civil action in cases of unfair practices.
A. Following the issuance of a finding of unsuccessful conciliation, any charging party on whose behalf the reasonable cause finding was made, or a respondent, may, with respect to an unfair practice under this chapter, elect to have the claims on which reasonable cause was found decided in a civil action under this section in lieu of an administrative hearing under SMC 14.08.170 and 14.08.180. This election must be made not later than thirty (30) days after service of the finding of unsuccessful conciliation. The person making such election shall give notice of doing so to the Department and to all other charging parties and respondents to whom the charge relates.
B. If an election is made under subsection A of this section (except as provided in SMC 14.08.170(B)), the City Attorney shall commence, within ninety (90) days after the election is made, a civil action in the name of the Department in the King County Superior Court. In such action, if the court finds an unfair practice has occurred, the court may grant relief as would be available in an action brought under SMC 14.08.095 and damages and penalties as contemplated in SMC 14.08.180 or SMC 14.08.185.
C. Any person who claims to have been injured by, or believes that he or she will be injured by an unfair practice which is the subject matter of the civil action filed under this section may intervene as of right in the civil action.
(Ord. 121593 § 21, 2004; Ord. 116818 § 20, 1993.)
14.08.170 Complaint and hearing.
A. Following submission of the investigatory file from the Director, the City Attorney shall, except as set forth in subsection B of this section, prepare a complaint against such respondent relating to the charge and facts discovered during the Department's investigation. The City Attorney shall file the complaint with the Hearing Examiner in the name of the Department and represent the interests of the Department at all subsequent proceedings.
B. In cases which are not dual-filed with the Department of Housing and Urban Development, if the City Attorney determines that there is no legal basis for a complaint to be filed or proceedings to continue, a statement of the reasons therefor shall be filed with the Department. The Director shall then dismiss the charge. Any party aggrieved by the dismissal may appeal the dismissal to an appropriate court.
C. The City Attorney shall serve a copy of the complaint on respondent and furnish a copy of the complaint to the charging party and to the Department.
D. Within twenty (20) days of the service of such complaint upon it, the respondent shall file its answer with the Hearing Examiner and serve a copy of the same on the City Attorney.
E. Upon the filing of the complaint, the Hearing Examiner shall promptly establish a hearing date and give notice thereof to the Commission, the City Attorney and respondent, and shall thereafter hold a public hearing on the complaint which shall commence no earlier than ninety (90) days nor later than one hundred twenty (120) days from the filing of the complaint, unless otherwise ordered by the Hearing Examiner.
F. After the complaint is filed with the Hearing Examiner, it may be amended only with the permission of the Hearing Examiner, which permission shall be granted when justice will be served and all parties are allowed time to prepare their case with respect to additional or expanded charges.
G. The hearing shall be conducted by the Hearing Examiner, a deputy hearing examiner or a hearing examiner pro tempore appointed by the Hearing Examiner from a list approved by the Commission, sitting alone or with representatives of the Commission if any are designated. Such hearings shall be conducted in accordance with written rules and procedures consistent with this chapter and the Administrative Code, Ch. 3.02 SMC.
H. The Commission, within thirty (30) days after receiving notice of the date of hearing from the Hearing Examiner, at its discretion, may appoint two (2) Commissioners who have not otherwise been involved in the charge, investigation, fact finding, or other resolution and proceeding on the merits of the case, who have not formed an opinion on the merits of the case, and who otherwise have no pecuniary, private or personal interest or bias in the matter, to hear the case with the Hearing Examiner. Each Commissioner shall have an equal vote with the Hearing Examiner. The Hearing Examiner shall be the chairperson of the panel and make all evidentiary rulings. The Hearing Examiner shall resolve any question of previous involvement, interest or bias of an appointed Commissioner in conformance with the law on the subject. Any reference in this chapter to a decision, order, or other action of the Hearing Examiner shall include, when applicable, the decision, order, or other action of a panel constituted under this subsection.
(Ord. 121593 § 22, 2004; Ord. 116818 § 21, 1993: Ord. 109208 § 6, 1980: Ord. 104839 § 9, 1975.)
1. Editor's Note: The Administrative Code is codified in Chapter 3.02 of this Code.
14.08.180 Decision and order.
A. Within thirty (30) days after conclusion of the hearing, the Hearing Examiner shall prepare a written decision and order. The final decision shall be filed as a public record with the City Clerk, and copies thereof mailed to each party of record and to the Department.
B. Such decision shall contain a brief summary of the evidence considered and shall contain findings of fact, conclusions of law upon which the decision is based, and an order detailing the relief deemed appropriate, together with a brief statement of the reasons supporting the decision.
C. In the event the Hearing Examiner or a majority of the panel composed of the Hearing Examiner and Commissioners determines that a respondent has committed an unfair practice under this chapter, the Hearing Examiner may order the respondent to take such affirmative action or provide for such relief as is deemed necessary to correct the practice, effectuate the purpose of this chapter, and secure compliance therewith, including but not limited to, rent refund or credit, reinstatement to tenancy, affirmative recruiting and advertising measures, reasonable attorney's fees and costs, or to take such other action as in the judgment of the Hearing Examiner will carry out the purposes of this chapter. The Hearing Examiner may grant any relief that could be ordered by a court, including actual damages, damages for loss of the right to be free from discrimination in real estate transactions, injunctive or equitable relief, any other appropriate remedy set forth in the federal Fair Housing Amendments Act of 1988 (42 U.S.C. §3601 et seq.), and assessment of civil penalties as set forth in SMC 14.08.185. An order may include the requirement for a report on the matter of compliance.
D. Any person aggrieved by a final order of the Hearing Examiner may appeal the order on the record to an appropriate court.
E. The Department in the performance of its functions may enlist the aid of all departments of City government, and all said departments are directed to fully cooperate with the Department.
(Ord. 121593 § 23, 2004; Ord. 117615 § 6, 1995: Ord. 116818 § 22, 1993: Ord. 113610 § 6, 1987; Ord. 112903 § 19, 1986; Ord. 109208 § 7, 1980: Ord. 104839 § 10, 1975.)
14.08.185 Civil penalty in cases alleging unfair practices.
A. In cases either decided by the Director or brought by the City Attorney alleging unfair practices filed under this chapter, in addition to any other award of damages or grant of injunctive relief, a civil penalty may be assessed against the respondent to vindicate the public interest, which penalty shall be payable to the City of Seattle and the Department. Payment of the civil penalty may be required as a term of a conciliation agreement entered into under SMC 14.08.160(A), or may be ordered by the Hearing Examiner in a decision rendered under SMC 14.08.180 or by a court of competent jurisdiction in a proceeding filed under SMC 14.08.165.
B. The civil penalty assessed against a respondent shall not exceed the following amount:
1. Eleven Thousand Dollars ($11,000) if the respondent has not been determined to have committed any prior unfair practice;
2. Twenty seven Thousand Five Hundred Dollars ($27,500) if the respondent has been determined to have committed one (1) other unfair practice during the five (5) year period ending on the date of the filing of this charge; or
3. Fifty five Thousand Dollars ($55,000) if the respondent has been determined to have committed two (2) or more unfair practices during the seven (7) year period ending on the date of the filing of this charge; except that if acts constituting the unfair practice that is the subject of the charge are committed by the same natural person who has been previously determined to have committed acts constituting an unfair practice, then the civil penalties set forth in subparagraphs 2 and 3 of subsection B of this section may be imposed without regard to the period of time within which those prior acts occurred.
(Ord. 121593 § 24, 2004; Ord. 116818 § 23, 1993.)
14.08.187 Enforcement of Department and Hearing Examiner orders and agreements.
A. In the event a City respondent fails to comply with any final order of the Director or of the Hearing Examiner, a copy of the order shall be transmitted to the Mayor, who shall take appropriate action to secure compliance with the final order.
B. In the event a respondent fails to comply with any final order issued by the Hearing Examiner not directed to the City or to any City department, the Director, shall refer the matter to the City Attorney, for the filing of a civil action to enforce such order.
C. Whenever the Director has reasonable cause to believe that a respondent has breached a settlement or conciliation agreement, the Director shall refer the matter to the City Attorney for filing of a civil action to enforce such agreement.
D. If no action has been filed under subsection B or C of this section within ninety (90) days after referral to the City Attorney, any person entitled to relief under the final order or a party to a settlement or conciliation agreement may file a civil action in superior court to enforce the order or agreement.
(Ord. 121593 § 25, 2004; Ord. 116818 § 24, 1993.)
14.08.190 Exclusions.
Nothing in this chapter shall:
A. Apply to the renting, subrenting, leasing or subleasing of a single-family dwelling, wherein the owner or person entitled to possession thereof maintains a permanent residence, home or abode, except as set forth in SMC 14.08.040(B), 14.08.040(C), SMC 14.08.045, SMC 14.08.060, SMC 14.08.070(A), and SMC 14.08.070(B);
B. Be interpreted to prohibit any person from making a choice among prospective purchasers or tenants of real property on the basis of factors other than race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of any disability, or the use of a trained dog guide or service animal by a disabled person where such factors are not designed, intended or used to discriminate;
C. Prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on the basis of race, color, or national origin;
D. Prohibit any person from limiting the rental or occupancy of a dwelling in any YWCA, YMCA, sorority, fraternity, school dormitory, or similar residential hall to persons of one sex;
E. Prohibit any person from limiting the rental or occupancy of a dwelling to persons who are elderly or disabled in any housing facility designed, constructed or substantially rehabilitated and operated exclusively for older persons, as defined by 42 U.S.C. Sec. 3607(b)(1) through (5) as of the effective date of this ordinance, or for the disabled;
F. Require any person to rent or lease a dwelling to an unemancipated minor;
G. Require any person to rent or lease a dwelling in violation of the Housing and Building Maintenance Code;
H. Be construed to prohibit treating disabled persons more favorably than persons who are not disabled;
I. Be construed to protect criminal conduct;
J. Prohibit any person from limiting the rental or occupancy of a dwelling based on the use of force or violent behavior by an occupant or prospective occupant, including behavior intended to produce or incite imminent force or violence to the person or property of the owner, manager, or other agent of the owner.
(Ord. 123014, § 10, 2009; Ord. 121593 § 26, 2004; Ord. 119628 § 15, 1999: Ord. 116818 § 25, 1993; Ord. 114864 § 8, 1989; Ord. 113610 § 7, 1987; Ord. 112903 § 20, 1986; Ord. 109208 § 8, 1980: Ord. 108205 § 4, 1979: Ord. 104839 § 11, 1975.)
1. Editor's Note: The Housing Code is codified in Title 22 of this Code.
14.08.200 Unlawful conduct and penalties.
It is unlawful for any person to willfully resist, prevent, impede or interfere with the Director or Hearing Examiner in the performance of their duties under this chapter. A violation of this section is a misdemeanor subject to penalties as set forth in SMC 12A.02.070B.
(Ord. 121593 § 27, 2004; Ord. 109208 § 9, 1980: Ord. 104839 § 12, 1975.)
14.08.205 Construction with other laws.
Nothing in this chapter shall invalidate or restrict any right or remedy of any charging party or respondent under state or federal law nor preclude such party from seeking judicial review of any final administrative decision or order made under this chapter.
(Ord. 109208 § 10, 1980: Ord. 104839 § 15, 1975.)
14.08.210 Cooperative agreements.
Nothing in this chapter shall be interpreted to prevent the receiving, referring, or other processing of complaints, in accordance with a cooperative agreement with the United States Department of Housing and Urban Development, the Washington State Human Rights Commission as authorized and mandated by RCW 49.60.226, or with other agencies concerned with the enforcement of laws against discrimination.
(Ord. 121593 § 28, 2004; Ord. 109208 § 11, 1980: Ord. 104839 § 16, 1975.)
14.08.215 Application to pending charges and complaints.
The procedures for administration and enforcement under this chapter shall apply to charges pending which have not had a date certain set for hearing as of the effective date of the ordinance codified in this chapter.1 However, this section shall not be construed to invalidate any administrative action taken or determinations and orders made on pending charges because of the procedures provided by this chapter.
(Ord. 109208 § 12, 1980.)
1. Editor's Note: Ordinance 109208 became effective August 20, 1980.
Chapter 14.10 Sections:
14.10.010 Statement of purpose.
14.10.020 Definitions.
14.10.030 Unfair contracting practices prohibited.
14.10.040 Administration and enforcement.
14.10.050 Filing charges.
14.10.060 Charge– Time for filing.
14.10.070 Charge– Amendments.
14.10.080 Charge– Notice and investigation.
14.10.090 Findings of fact and determination of reasonable cause or no reasonable cause.
14.10.100 Determination of no reasonable cause.
14.10.110 Determination of reasonable cause– Conciliation and settlement of cases involving all respondents except City departments.
14.10.120 Determinations of reasonable cause– Conciliation, settlement and conclusion of cases involving City departments as respondents.
14.10.130 Charge and hearing of cases.
14.10.140 Decision and order.
14.10.150 Violation– Penalty.
14.10.160 Requirement to comply.
14.10.170 Enforcement by private persons.
14.10.180 Position created.
14.10.010 Statement of purpose.
The ordinance codified in this chapter is an exercise of the police power for the protection of the public welfare, health, peace and safety of the residents of The City of Seattle and in fulfillment of the provisions of the Constitution of this state. The City Council hereby finds and declares that practices of discrimination in public or private contracting against any person on the basis of race, color, sex, marital status, sexual orientation, gender identity, political ideology, age, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of any disability constitute matters of local concern and are contrary to the public welfare, health, peace and safety of the residents of Seattle. The provisions of this chapter shall apply to the City when acting as a contractor and to other contractors, subcontractors, suppliers, material suppliers, bonding agencies, contract agencies and other business entities doing business in the City, and shall be liberally construed for accomplishment of its policies and purposes. Nothing in this chapter shall be deemed to deny any persons the right to institute any action or to pursue any civil or criminal remedy for the violation of such person's civil rights. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the City, or its officers or agents, for any injury or damage resulting from or by reason of any act or omission in connection with the implementation or enforcement of this chapter on the part of the City by its officers, employees or agents. Nothing in this chapter shall be presumed to toll the statute of limitations for any claims under federal or state statute. Nothing in this chapter shall be construed to prohibit or apply to actions taken in good faith against any person by a contractor based solely upon their performance, qualifications, or ability to perform in accordance with the terms of a contract or for other nondiscriminatory reasons.
(Ord. 123527, § 11, 2011; Ord. 123014, § 11, 2009; Ord. 119601 § 1, 1999.)
14.10.020 Definitions.
When used in this chapter, unless the context otherwise requires:
"Business enterprise" means any licensed business organization located in or doing business in The City of Seattle.
"Charging party" means the person aggrieved by an alleged unfair contracting practice or the person making a charge on another person's behalf, or the Director when the Director files a charge.
"City department" means any agency, office, board or commission of the City, or any Department employee acting on its behalf, but shall not mean a public corporation chartered under Ordinance 1033871, or its successor ordinances, or any contractor, consultant, concessionaire or lessee.
"Commercially significant contract" means any contract for the provision of services (including but not limited to construction services, consulting services or bonding or other financial services) or the sale of goods that exceeds the amount established for such contracts by the Director.
"Contract" means any agreement to perform a service or provide goods that entails a legally binding obligation, where such contract is executed within, or intended to be wholly or partly performed within The City of Seattle.
"Contracting agency" means any person who for compensation engages in recruiting, procuring, referral or placement of contracts with a contractor.
"Contractor" means any business enterprise including but not limited to any company, partnership, corporation or other legal entity, excluding real property lessors and lessees, contracting to do business within the City including but not limited to public work contractors, consultant contractors, providers of professional services, service agencies, vendors, and suppliers selling or furnishing materials, equipment, goods or services, but not including governmental agencies other than The City of Seattle.
"Department" means the Office for Civil Rights.
"Director" means the Director of the Office for Civil Rights.
["Disability".]
1. "Disability" means the presence of a sensory, mental, or physical impairment that:
a. Is medically cognizable or diagnosable; or
b. Exists as a record or history; or
c. Is perceived to exist whether or not it exists in fact.
2. A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.
3. For purposes of this definition, "impairment" includes, but is not limited to:
a. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
b. Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
"Discrimination," "discriminate," and/or "discriminatory act" means any act (other than an action taken in accordance with a lawful affirmative action program) or failure to act whether by itself or as part of a practice, the effect of which is to adversely affect or differentiate between or among individuals or groups of individuals by reason of race, color, age, sex, marital status, sexual orientation, gender identity, political ideology, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of disability, unless based upon a bona fide occupational qualification.
"Gender identity" means a person's identity, expression, or physical characteristics, whether or not traditionally associated with one's biological sex or one's sex at birth, including transsexual, transvestite, and transgendered, and including a person's attitudes, preferences, beliefs, and practices pertaining thereto.
"Honorably discharged veteran or military status" means:
(1) A veteran, as defined in RCW 41.04.007; or
(2) An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.
"Marital status" means the presence or absence of a marital relationship and includes the status of married, separated, divorced, engaged, widowed, single or cohabitating.
"Party" includes the person making a charge alleging an unfair contracting practice and the person alleged to have committed an unfair contracting practice and the Office for Civil Rights.
"Person" includes one (1) or more individuals, partnerships, associations, organizations, trade or professional associations, corporations, public corporations, cooperatives, legal representatives, trustees, trustees in bankruptcy and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent or employee, whether one (1) or more natural persons, and further includes any department, office, agency or instrumentality of the City.
"Political ideology" means any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not interfere with job performance.
"Respondent" means any person who has been alleged or found to have committed an unfair contracting practice prohibited by this chapter.
"Sexual orientation" means actual or perceived male or female heterosexuality, bisexuality, or homosexuality and includes a person's attitudes, preferences, beliefs and practices pertaining thereto.
"Trade association" means an association of business organizations engaged in similar fields of business which is formed for mutual protection, the interchange of ideas, information and statistics or the maintenance of standards within their industry.
(Ord. 123527, § 12, 2011; Ord. 123014, § 12, 2009; Ord. 119601 § 2, 1999.)
1. Editor's Note: Ordinance 103387 is codified in this code in Chapter 3.110.
14.10.030 Unfair contracting practices prohibited.
It is an unfair contracting practice for any:
A. Business enterprise or City department to discriminate against any person with respect to the award or referral of a contract or with respect to the conditions, terms, price, or performance standards, other provisions of a contract;
B. Contracting agency, or trade association or labor organization to discriminate against any person with respect to membership rights and privileges, admission to or participation in any guidance program, or other business or occupational training program;
C. Contractor, contracting agency, bonding agency, trade association or labor organization to print, circulate, or cause to be printed, published, or circulated, any statement, advertisement, or publication relating to contracting or membership, or to use any form of application therefor, which indicates any discrimination unless based upon a bona fide occupational qualification;
D. Contracting agency or trade association to discriminate against any person with respect to any referral of a contract opportunity or assignment of a particular contract;
E. Contractor, contract agency, trade association or labor organization to retaliate against any person because that person has opposed an act of discrimination or because that person has made a charge, testified or assisted in any manner in any investigation, proceeding or hearing initiated under the provisions of this chapter.
(Ord. 119601 § 3, 1999.)
14.10.040 Administration and enforcement.
The Office for Civil Rights shall receive, investigate, and issue findings with respect to charges alleging unfair practices as defined by this chapter, conciliate and settle the same by agreement, and monitor and enforce any agreements or orders resulting therefrom or from a subsequent hearing thereon under and pursuant to the terms of this chapter; and shall have such powers and duties in the performance of these functions as are defined in this chapter and otherwise necessary and proper in the performance of the same and provided for by law. The Department shall further assist other City agencies and departments upon request in effectuating and promoting the purposes of this chapter.
The Director is authorized and directed to promulgate rules consistent with this chapter.
(Ord. 119601 § 4, 1999.)
14.10.050 Filing charges.
A. An individual charge alleging an unfair contracting practice in connection with a commercially significant contract may be filed by or on behalf of any person who claims to be aggrieved by an unfair contracting practice. A charge alleging that a group is being subjected to an unfair contracting practice in connection with a commercially significant contract may be filed by any member of the group, the Director, a state or federal agency concerned with discrimination in contracting whenever such an agency has reason to believe that an unfair contracting practice has been or is being committed, or any trade association which has reason to believe that an unfair contracting practice has been or is being committed against any of its members.
B. A charge alleging an unfair contracting practice shall be in writing on a form or in a format determined by the Department, and signed under oath or affirmation by or on behalf of a charging party before the Director, one of the Department's employees, or any other person authorized to administer oaths, and shall describe the unfair contracting practice complained of and should include a statement of the dates, places and circumstances and the persons responsible for such acts and practices.
C. Whenever charges are made by or on behalf of a person claiming to be aggrieved, the person making the charge must provide the Director with the name, address and telephone number of the individual on whose behalf the charge is made. Thereafter, the Director shall verify the authorization of such charge by the person on whose behalf the charge is made and upon the request of such person may keep his or her identity confidential to the extent allowed by law.
D. A charge shall not be rejected as insufficient because of failure to include all required information so long as it substantially satisfies the informational requirements necessary for processing.
E. A charge alleging an unfair contracting practice or pattern of unfair practices may also be filed by the Director whenever the Director has reason to believe that any person has been engaged or is engaging in an unfair contracting practice.
(Ord. 119601 § 5, 1999.)
14.10.060 Charge– Time for filing.
Charges filed under this chapter must be filed with the Department within one hundred eighty (180) days after the occurrence of the alleged unfair contracting practice.
(Ord. 119601 § 6, 1999.)
14.10.070 Charge– Amendments.
The charging party or the Department may amend a charge to cure technical defects or omissions; or to clarify and amplify allegations made therein; or to add allegations related to or arising out of the subject matter set forth, or attempted to be set forth, in the original charge. For jurisdictional purposes, such amendments shall relate back to the date the original charge was first filed. The charging party may also amend a charge to include allegations of additional unrelated discriminatory acts and/or retaliation which arose after filing of the original charge. The amendment must be filed within one hundred eighty (180) days after the occurrence of the additional discriminatory act and/or retaliation and prior to the Department's issuance of findings of fact and a determination with respect to the original charge. Such amendments may be made at any time during the investigation of the original charge so long as the Department will have adequate time to investigate such additional allegations and the parties will have adequate time to present the Department with evidence concerning such allegations before the issuance of findings of fact and a determination.
(Ord. 119601 § 7, 1999.)
14.10.080 Charge– Notice and investigation.
A. The Director shall cause to be served or mailed by certified mail, return receipt requested, a copy of the charge on the respondent within twenty (20) days after the filing of the charge and shall promptly make an investigation thereof.
B. The investigation shall be directed to ascertain the facts concerning the unfair practice alleged in the charge, and shall be conducted in an objective and impartial manner.
C. During the investigation the Director shall consider any statement of position or evidence with respect to the allegations of the charge which the charging party or the respondent wishes to submit. The Director shall have authority to sign and issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed, and access to evidence for the purpose of examination and copying, and conduct discovery procedures which may include the taking of interrogatories and oral depositions.
D. The Director may require a fact finding conference or participation in another process with the respondent and any of respondent's agents and witnesses and charging party during the investigation in order to define the issues, determine which elements are undisputed, resolve those issues which can be resolved, and afford an opportunity to discuss or negotiate settlement. Parties may have their legal counsel present if desired.
(Ord. 119601 § 8, 1999.)
14.10.090 Findings of fact and determination of reasonable cause or no reasonable cause.
A. The results of the investigation shall be reduced to written findings of fact and a determination shall be made by the Director that there is or is not reasonable cause for believing that an unfair practice has been or is being committed, which determination shall also be in writing and issued with the written findings of fact. Where a City department is a respondent the Director shall issue such findings and determination only after having submitted proposed findings and determinations to the respondent and charging party for review and comment. With respect to the findings and determination, "issued" shall be defined as signed and dated by the Director.
B. The findings of fact and determination shall be furnished promptly to the respondent and charging party.
C. Once issued to the parties, the Director's findings of fact, determination and order may not be amended or withdrawn except upon the agreement of the parties; provided that, the Director may correct clerical mistakes or errors arising from oversight or omission upon a motion from a party or upon the Director's own motion.
(Ord. 119601 § 9, 1999.)
14.10.100 Determination of no reasonable cause.
If a determination is made that there is no reasonable cause for believing an unfair contracting practice under this chapter has been committed, the charging party shall have the right to file a written request with the Director asking for reconsideration of the finding. The Director shall respond in writing within a reasonable time by granting or denying the request.
(Ord. 119601 § 10, 1999.)
14.10.110 Determination of reasonable cause– Conciliation and settlement of cases involving all respondents except City departments.
A. In all cases except a case in which a City department is the respondent, if a determination is made that reasonable cause exists to believe that an unfair practice has occurred, the Director shall endeavor to eliminate the unfair practice by conference, conciliation, and persuasion. Conditions of settlement may include (but are not limited to) the elimination of the unfair contracting practice, hiring, reinstatement, lost profits, attorney's fees, admittance or restoration to membership in a trade association, admittance to participation in a training, or such other action which will effectuate the purposes of this chapter, including action which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000). Any settlement agreement shall be reduced to writing and signed by the Director and the respondent. An order shall then be entered by the Director setting forth the terms of the agreement. Copies of such order shall be delivered to all affected parties.
B. In case of failure to reach an agreement and of conciliation and upon a written finding to that effect furnished to the charging party and respondent, except a case in which a City department is a respondent, the Director shall promptly cause to be delivered the entire investigatory file, including the charge and any and all findings made, to the City Attorney for further proceedings and hearing under this chapter pursuant to Section 14.10.130.
(Ord. 119601 § 11, 1999.)
14.10.120 Determinations of reasonable cause– Conciliation, settlement and conclusion of cases involving City departments as respondents.
In all cases in which a City department is a respondent:
A. A determination of reasonable cause by the Director shall be deemed a finding that an unfair contracting practice has been committed by respondent and is dispositive of this issue for all future proceedings under this chapter.
B. Within sixty (60) days of a determination of reasonable cause, the Director shall confer with the parties and determine an appropriate remedy, which remedy may include (but is not limited to) hiring, reinstatement, lost profits, attorney's fees, admittance or restoration to membership in a trade association, admittance to participation in a training, or such other action as will effectuate the purposes of this chapter including action which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000). Such remedy shall be reduced to writing in an order of the Director.
C. The charging party must sign a release in the form and manner requested by the Department, releasing the City from further liability for acts giving rise to the charge in order to obtain the benefits of the remedy provided under this section and before payment can be made. Without such release, the Director's order with respect to the charging party's individual relief shall have no force and effect. In such event the Director shall notify the parties involved in writing.
D. In all cases where the remedy determined by the Director includes a monetary payment which exceeds the sum of Ten Thousand Dollars ($10,000), the charge or claim, the Director's determination, order, the charging party's signed release and such further documentation as may be required shall be presented to the City Council for passage by separate ordinance. If the City Council fails or refuses to appropriate the amount ordered by the Director within ninety (90) days, the Director shall certify the case to the Hearing Examiner for a hearing to determine the appropriate monetary relief in the case which determination shall be final and binding upon the City.
E. Where the Director's order includes a monetary payment of Ten Thousand Dollars ($10,000) or less, such payment shall be made under the authority and in the form and manner otherwise provided for by law for payment of such claims.
(Ord. 119601 § 12, 1999.)
14.10.130 Charge and hearing of cases.
A. Following submission of the investigatory file from the Director in cases involving all respondents under Section 14.10.110, the City Attorney shall prepare a complaint against such respondent relating to the charge and facts discovered during the investigation thereof and prosecute the same in the name and on behalf of the Department and the City at a hearing before the Hearing Examiner and appear for and represent the interests of the Department and the City at all subsequent proceedings; provided, if the City Attorney determines that there is no legal basis for a complaint to be filed or for proceedings to continue, a statement of the reasons therefor shall be filed with the Department, charging party and the respondent.
B. The complaint shall be served on respondent in the usual manner provided by law for service of complaints and filed with the Seattle Hearing Examiner. A copy of such complaint shall be furnished to the charging party.
C. Within twenty (20) days of the service of such complaint upon it, the respondent shall file its answer with the Hearing Examiner and serve a copy of the same on the City Attorney.
D. Upon the filing of the complaint, the Hearing Examiner shall promptly establish a date for the hearing of such complaint and give notice thereof to the City Attorney and respondent, and shall thereafter hold a public hearing on the complaint, which hearing shall commence no earlier than ninety (90) days nor later than one hundred twenty (120) days from the filing of the complaint, unless otherwise ordered by the Hearing Examiner.
E. After the filing of a complaint with the Hearing Examiner, it may be amended only with the permission of the Hearing Examiner, which permission shall be granted when justice will be served thereby and all parties are allowed time to prepare their case with respect to additional or expanded charges which they did not and could not have reasonably foreseen would be in issue at the hearing.
F. The hearing shall be conducted by a Hearing Examiner from the Office of Hearing Examiner, or a hearing examiner pro tempore appointed by the Hearing Examiner. Such hearings shall be conducted in accordance with written rules and procedures consistent with this chapter and the Administrative Code of the City (Ordinance 102228).1
(Ord. 119601 § 13, 1999.)
1. Editor's Note: Ordinance 102228 is codified in this code as Chapter 3.02.
14.10.140 Decision and order.
A. Within thirty (30) days after conclusion of the hearing, the Hearing Examiner presiding at the hearing shall prepare a written decision and order. The final decision shall be filed as a public record with the City Clerk, and copies thereof mailed to each party of record and to the Department.
B. Such decision shall contain a brief summary of the evidence considered and shall contain findings of fact, conclusions of law upon which the decision is based, and an order detailing the relief deemed appropriate, together with a brief statement of the reasons therefor.
C. In the event the Hearing Examiner determines that a respondent has committed an unfair contracting practice under this chapter, the Hearing Examiner may order the respondent to take such affirmative action or provide for such relief as is deemed necessary to correct the practice, effectuate the purpose of this chapter, and secure compliance therewith, including but not limited to hiring, reinstatement, lost profits, attorney's fees, admittance or restoration to membership in a trade association, admittance to participation in a training, or such other action which will effectuate the purposes of this chapter including action which could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed Ten Thousand Dollars ($10,000). Lost profits shall not accrue from a date more than two (2) years prior to the initial filing of the charge. The Hearing Examiner may also disqualify the respondent from participating in contracts with the City for a period of up to five (5) years.
D. Respondent shall comply with the provisions of any order affording relief and shall furnish proof of compliance to the Department as specified in the order. In the event respondent refuses or fails to comply with the order, the Director shall notify the City Attorney of the same and the City Attorney shall invoke the aid of the appropriate court to secure enforcement or compliance with the order.
(Ord. 119601 § 14, 1999.)
14.10.150 Violation– Penalty.
It is unlawful for any person to wilfully engage in an unfair practice under this chapter or wilfully resist, prevent, impede or interfere with the Director or Hearing Examiner in the performance of their duties under this chapter, or to fail, refuse, or neglect to comply with any lawful order of the Director or Hearing Examiner. Conduct made unlawful by this section constitutes a violation subject to the provisions of Chapter 12A.02 of the Seattle Criminal Code and any person convicted thereof may be punished by a civil fine or forfeiture not to exceed Five Hundred Dollars ($500).
(Ord. 119601 § 15, 1999.)
14.10.160 Requirement to comply.
The City shall include the requirement to comply with this chapter, as amended, in all contracts and agreements with recipients of grants and other funds through or from the City and with organizations which use City buildings, facilities or property or which use property for which the City is responsible for capital improvements.
(Ord. 119601 § 16, 1999.)
14.10.170 Enforcement by private persons.
A. Any person who claims to have been injured by an unfair contracting practice may commence a civil action in a court of competent jurisdiction, not later than three years after the occurrence of the alleged unfair contracting practice or ninety (90) days after a determination of reasonable cause by the Director, whichever occurs last, to obtain appropriate relief with respect to such unfair contracting practice.
B. A civil action may be filed under this section whether or not an administrative charge has been filed under Section 14.10.060, and without regard to the status of such charge, but if the Department has obtained a pre-finding or post-finding settlement or conciliation agreement with the consent of the charging party, no civil action may be filed under this section with respect to the alleged unfair contracting practice which forms the basis for such complaint except for the purpose of enforcing the terms of the agreement. To preclude such filing, the charging party must be provided with written notice that consent to a pre-finding or post-finding settlement or conciliation agreement will terminate the charging party's right to file a civil action under this section.
C. 1. Subject to the provisions of subsection C2 of this section, upon the filing of a civil action involving the same claim or arising from the same facts and circumstances, whether under this chapter or similar law, a complaint of an unfair contracting practice may be administratively closed by the Director.
2. In the event that a court dismisses a private cause of action on grounds that would not preclude pursuit of a charge under this chapter, the charging party may request, within ninety (90) days of the entry of the Court's order of dismissal, that the Department reopen a previously filed charge. Upon such request, the Director may reopen a case that was administratively closed upon the filing of a civil action. If the Department closes a case based on a "no reasonable cause" finding, the case shall not be reopened.
3. No complainant or aggrieved person may secure relief from more than one (1) governmental agency, instrumentality or tribunal for the same harm or injury.
4. Where the complainant or aggrieved person elects to pursue simultaneous claims in more than one (1) forum, the factual and legal determinations issued by the first tribunal to rule on the claims may, under the doctrines of "res judicata" or "collateral estoppel," be binding on all or portions of the claims pending before other tribunals.
5. No civil action may be commenced under this section with respect to an alleged unfair contracting practice which forms the basis of a complaint if a hearing on the record has been commenced by The City of Seattle Office of the Hearing Examiner. To preclude such filing, a charging party must be provided with written notice at least thirty (30) days prior to the commencement of a hearing before The City of Seattle Office of the Hearing Examiner that the commencement of such a hearing will terminate the charging party's right to file a civil action.
D. In a civil action under this section, if the court, or jury, finds that an unfair contracting practice has occurred, the court may grant such relief as may be awarded by the Hearing Examiner under this chapter or is authorized by the Washington Law Against Discrimination, Chapter 49.60 RCW, as amended. Damages awarded under this section for humiliation and mental suffering are not subject to the limitation of Section 14.10.140.
E. Upon timely application, the City Attorney may intervene in such civil action, if the City Attorney certifies that the case is of general public importance, and may obtain such relief as would be available in an action brought under Section 14.10.130. Such intervention shall not be permitted in an action in which the City is a defendant.
(Ord. 119601 § 17, 1999.)
14.10.180 Position created.
As requested by the Director of the Seattle Office for Civil Rights (SOCR), the following position, title and salary is created and added to the 1999 position list of the SOCR:
(1) Planning and Development II, 1 FTE $22.12
(Ord. 119601 § 18, 1999.)
Chapter 14.12 ------------
Statutory Reference: For comparable or useful statutory provisions regarding the dissemination of criminal records, see RCW 10.97.070; for statutory provisions regarding the disclosure of public records, see RCW Ch. 42.17.
Severability: If any provision of this chapter, or its application to any person or circumstances, is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected.
(Ord. 110572 § 40, 1982: Ord. 108333 § 41, 1979.)
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Sections:
Subchapter I General Provisions
14.12.010 Statement of purpose.
14.12.020 Policies.
14.12.030 Definitions.
14.12.040 Usages.
14.12.050 Application.
Subchapter II Scope– Exemptions and Exclusions
14.12.060 Scope.
14.12.070 Administrative records.
14.12.080 Incidental references.
14.12.090 Confidential communications.
14.12.100 Materials open to public inspection.
14.12.110 Special investigations.
14.12.120 Exclusions.
Subchapter III Handling Private Sexual Information
14.12.130 Collection and use.
14.12.140 Receipt and transmission.
Subchapter IV Handling Restricted Information for Criminal Investigations
14.12.150 Collecting restricted information.
14.12.160 Contents of an authorization.
14.12.170 Additional authorizations.
14.12.180 Actions after authorization.
14.12.190 Receipt of restricted information.
14.12.200 Transmission of restricted information.
Subchapter V Handling Restricted Information for Protecting Dignitaries
14.12.210 Collecting and filing restricted information.
14.12.220 Collecting restricted information without an authorization.
14.12.230 Authorizations for dignitary protection.
14.12.240 Receipt and transmission of restricted information.
Subchapter VI Police Operations
14.12.250 Use of infiltrators.
14.12.260 Use of informants.
14.12.270 Use of modus operandi (MO) files.
14.12.280 Prohibited activities.
Subchapter VII Criminal Information Section
14.12.290 Powers and functions.
14.12.300 Responsibilities.
Subchapter VIII Auditing and Notice Requirements
14.12.310 Appointment and responsibilities of Auditor.
14.12.320 Limitations on the Auditor.
14.12.330 Audit procedures and standards.
14.12.340 Notice of substantial violations.
Subchapter IX Civil Liability, Enforcement and Penalties
14.12.350 Civil liability.
14.12.360 Liability of officers and employees.
14.12.370 Rules and regulations.
14.12.380 Department reporting.
14.12.390 Administrative penalties.
14.12.400 Administrative penalties for supervisors.
Subchapter I 14.12.010 Statement of purpose.
This chapter shall be interpreted and implemented in a manner to permit the collection and recording of information for law enforcement purposes, so long as these police activities do not unreasonably: (a) infringe upon individual rights, liberties, and freedoms guaranteed by the Constitution of the United States or of the State– including, among others, the freedom of speech, press, association, and assembly; liberty of conscience; the exercise of religion; and the right to petition government for redress of grievances; or (b) violate an individual's right to privacy. This ordinance is not intended to protect criminal activity.
(Ord. 110572 § 1, 1982: Ord. 108333 § 1, 1979.)
14.12.020 Policies.
The following policies shall govern the collection and recording of information by department personnel:
A. No person shall become the subject of the collection of information on account of a lawful exercise of a constitutional right or civil liberty; no information shall be collected upon a person who is active in politics or community affairs, unless under the same or similar circumstances the information would be collected upon another person who did not participate actively in politics or community affairs;
B. All information collected shall reasonably appear relevant to the performance of an authorized police function; no information shall be collected or used for political purposes;
C. When a police officer knows of two (2) or more techniques to collect restricted information and each would be equally practical and effective, the officer should use the technique which he reasonably believes will have the least adverse impact upon lawful political and/or religious activity;
D. Information indexed for ready retrieval, other than correspondence files, shall be reviewed periodically and only that deemed relevant to present and future law enforcement activities or required by law shall be retained;
E. To protect the rights of privacy of the citizenry and to preserve the confidentiality of communications, disclosure of information shall be limited to records open for public inspection, to arrest notices and information disclosed to the public for law enforcement purposes, and/or to information needed by: (1) criminal justice agencies in the performance of their official functions; (2) persons with a legitimate interest in the information and persons making inquiry with their consent; (3) persons with a right to disclosure under a statute, implementing regulation, ordinance, or court order; (4) persons conducting research for scientific or law enforcement purposes under assurance of confidentiality; and (5) agencies with regulatory responsibilities for which the information is pertinent; and
F. Disclosure of information from records closed to public inspection shall be limited to those facts and materials reasonably deemed relevant to the purposes for the disclosure, unless the disclosure occurs pursuant to a subpoena or court order, the Public Disclosure Act (Chapter 42.17 RCW), the Criminal Records Privacy Act (RCW 10.97.070), or other statute mandating disclosure, or the subject of the information consents to its disclosure.
(Ord. 110640 § 1, 1982; Ord. 110572 § 2, 1982: Ord. 108333 § 2, 1979.)
14.12.030 Definitions.
When the following words or their derivations are emphasized, the definitions below apply:
A. "Auditor" means the person described in Section 14.12.310.
B. "Collect" means to write down, or preserve in another tangible form, information as a record or file of the Department, which is retrievable by Department personnel. "Collect" excludes making personal notes which are not retrievable by other Department personnel.
C. "Department" means the Police Department of The City of Seattle.
D. "Departmental personnel" means an officer or employee of the City assigned to the Department, and any individual paid by the City pursuant to vouchers drawn by the Chief of the Department or a fiscal officer assigned to the Department and acting under the direction and control of an officer or employee in the Department.
E. "Infiltrator" means a person acting under the direction of the Department who is a member or associate– or poses or acts as a member or associate– of a political or religious organization, an organization formed for the protection or advancement of civil rights or civil liberties, or an organization formed for community purposes, and who agrees to provide or provides information about the organization to the Department on a continuing basis without disclosing his or her relationship to the Department.
F. "Informant" means a person other than an officer or employee of the City assigned to the Department:
1. Who provides information to departmental personnel about a person in consideration of a personal benefit; or
2. Who is engaged, directed, or controlled by the Department.
G. "Person" means any individual, group of individuals, unincorporated association, and/or corporation. "Person" excludes a government or agency thereof.
H. "Private sexual information," when not emphasized in Sections 14.12.060, 14.12.070, 14.12.080, and 14.12.090 D, means any information about an individual's sexual practices or orientation. When emphasized, it excludes any such information within the scope of Sections 14.12.070 through 14.12.120 dealing with administrative records, incidental references, confidential communications, materials open to public inspection, special investigations, and exclusions, respectively.
I. "Purge" means to return, destroy, or deny use of information by means such as returning to the sender or removal to a secure depository with access restricted solely to specific individuals for purposes of defending a lawsuit, complying with a court order, preserving evidence possibly valuable to a defendant in a criminal case or pending commitment proceeding, and auditing compliance with this chapter or state laws regarding records retention or public disclosure. "Purge" shall include deletion of information from affected materials and from Department indexes. Nothing in this chapter shall prohibit indexing of materials within a secure depository.
J. "Reasonable suspicion" means a rational inference that is based on articulable facts.
K. "Restricted information," when not emphasized in Sections 14.12.060, 14.12.070, 14.12.080, 14.12.090 D, 14.12.250, 14.12.350 A3, and 14.12.370, means any information within subsections 1 through 3 of this subsection K. When emphasized, it excludes any such information within the scope of Sections 14.12.070 through 14.12.120 dealing with administrative records, incidental references, confidential communications, materials open to public inspection, special investigations, and exclusions, respectively. "Restricted information" means information about:
1. An individual's political or religious associations, activities, beliefs, or opinions;
2. The political or religious activities, beliefs, or opinions and the membership, mailing, subscription, or contributor lists of a political or religious organization, an organization formed for the protection or advancement of civil rights or civil liberties, or an organization formed for community purposes; or
3. An individual's membership or participation in such an organization, in a political or religious demonstration, or in a demonstration for community purposes.
L. "Working day" means from 8 a.m. to 5 p.m. of each day from Monday through Friday, except days designated as legal holidays by RCW 1.16.050, Fridays immediately preceding any such legal holiday falling on a Saturday, and Mondays immediately following any legal holiday falling on a Sunday.
(Ord. 110640 § 2, 1982; Ord. 110572 § 3, 1982: Ord. 108333 § 3, 1979.)
14.12.040 Usages.
A. The singular number includes the plural, unless the context clearly indicates otherwise.
B. The masculine includes the feminine with respect to a particular office or position.
C. Unless otherwise indicated, a reference to a City Attorney, a Prosecuting Attorney, a District Attorney, or an Attorney General includes any Deputy or Assistant acting on the official's behalf.
D. Unless otherwise indicated, reference to the Criminal Information Section includes reference to any successor entity.
E. The subchapters identified with Roman numerals and the section captions are for convenient reference only and do not limit or modify the substance of the text of this chapter.
(Ord. 110572 § 4, 1982: Ord. 108333 § 39, 1979.)
14.12.050 Application.
This chapter shall not affect any action taken prior to its effective date.*
(Ord. 108333 § 40, 1979.)
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Editor's Note: Ord. 108333 became effective on January 1, 1980. Ord. 110572 became effective on June 9, 1982. The amendments derived from Ord. 110640 became effective on June 9, 1982.
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Subchapter II 14.12.060 Scope.
A. Those sections of this chapter controlling the collection, receipt, and/or transmission of information (Sections 14.12.130 through 14.12.240) do not apply to administrative records (Section 14.12.070), incidental references (Section 14.12.080), confidential communications (Section 14.12.090), materials open to public inspection (Section 14.12.100), special investigations (Section 14.12.110), and the exclusions (Section 14.12.120), provided that Department indexing does not cite any private sexual or restricted information other than the information in a proper name, unless specifically authorized by this chapter.
B. Except for the exclusion of Section 14.12.120 A1, the policies in Section 14.12.020 apply to the provisions of this chapter. All Department records are subject to audit unless excluded by Section 14.12.320 A1 through A6.
(Ord. 110640 § 3, 1982: Ord. 110572 § 5, 1982: Ord. 108333 § 4, 1979.)
14.12.070 Administrative records.
Administrative records pertain to Department operations and/or public relations, are comparable in character to files and records maintained by other City departments, and exclude investigatory files of the Department. Examples of administrative records include routine correspondence files; employment and personnel records; jail records on prisoners' religious preferences and customs; information for providing chaplain, escort, and ancillary community services; records of evidence, lost or stolen property, and custodial property inventoried without regard to informational content; and itinerary information used for providing security and protection for an official, dignitary, or consenting individual. Indexing may cite private sexual or restricted information only for a valid administrative purpose.
(Ord. 110640 § 4, 1982: Ord. 110572 § 6, 1982: Ord. 108333 § 5, 1979.)
14.12.080 Incidental references.
A. Private sexual or restricted information may be collected when the information appears as an incidental reference in a standard report form, in response to a general questionnaire completed by an applicant or witness using his or her own words, or in a more general description or statement.
B. Private sexual or restricted information may be collected when it forms an incidental part of the statement, verification, or rebuttal of a legal defense that has been raised by a suspect or may reasonably be anticipated; or an incidental part of the activities or associations of a homicide, unconscious, or kidnapped victim during the seventy-two (72) hours immediately preceding an incident or investigation.
C. In addition, private sexual or restricted information that comes within one of the following classifications may be collected when:
1. The information relates to a suspect whose identity is unknown and may not then be indexed by a true name;
2. The subject of the information supplies the information to known departmental personnel;
3. The information arises in the course of and is used exclusively for Traffic Code* enforcement and traffic safety purposes;
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Editor's Note: The Traffic Code is codified in Title 11 of this Code.
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4. The information is part of a recording maintained in connection with incoming emergency calls or a video and/or sound recording authorized by RCW 9.73.090;
5. The information is collected and maintained by the Department Communications Division for use exclusively in connection with emergency calls and is isolated from general Department files;
6. The information appears in records relating to child abuse or protective custody services contemplated by Chapter 26.44 RCW; or in unit records of Community Service Officers used in handling domestic disputes, youth counseling, or like community services; and/or
7. The information appears as part of the text of printed informational material from a governmental law enforcement agency, the main purpose of which is instructional and the disclosure of which would be detrimental to effective law enforcement.
D. Information collected pursuant to subsection C7 of this section may be indexed separately for purposes of the Public Disclosure Act (Chapter 42.17 RCW), provided that such information shall not be cross-referenced within other Department files.
(Ord. 110572 § 7, 1982: Ord. 108333 § 6, 1979.)
14.12.090 Confidential communications.
The following communications and materials are confidential:
A. A professional consultation between departmental personnel and a Department psychologist, or between a person detained in the City Jail and a jail physician or other medical personnel when a confidential relationship exists between the participants;
B. A confidential communication between departmental personnel and any legal advisor assigned to the Department or to represent the Department or departmental personnel, as well as memoranda of such communications;
C. A confidential communication between departmental personnel and a chaplain or other religious official; or
D. Information identifying the name of an informant which is privileged from disclosure in a court of law and information collected about an informant as part of and relevant to a background investigation to determine his or her reliability, provided the informant has consented to its collection. Such a confidential communication may not contain private sexual information or restricted information about any person other than the informant, except as an incidental reference (Section 14.12.080).
(Ord. 110572 § 8, 1982: Ord. 108333 § 7, 1979.)
14.12.100 Materials open to public inspection.
A. Materials such as the following qualify as materials open to public inspection if any person may examine them during regular Department business hours and the materials are readily available and may be obtained promptly:
1. Information about anticipated political or religious events– such as parades, processions, rallies, demonstrations, or assemblies contemplated in Chapter 11.25 of this Code, or its successor traffic code– and such materials as may be necessary in connection with the events for the direction and control of traffic, to protect the public health and safety, and to secure public liability insurance covering the City, provided that the complainant identification information may be kept confidential when required by RCW 42.17.310(1)(e);
2. Information in a reference center or library;
3. Printed literature from a criminal justice agency relating to law enforcement duties that may be obtained pursuant to the public disclosure rules of the Department prepared pursuant to state law; and/or
4. Any arrest circular or "Wanted" poster received by the Department as part of a general circulation by a governmental agency to law enforcement agencies.
B. Materials qualifying as materials open to public inspection pursuant to subsections A2 and A3 of this section may be indexed separately for the purposes of the Public Disclosure Act (Chapter 42.17 RCW), provided that such materials shall not be cross-referenced within other Department files.
(Ord. 110640 § 5, 1982: Ord. 110572 § 9, 1982: Ord. 108333 § 8, 1979.)
14.12.110 Special investigations.
Information may be collected in connection with the following special investigations when:
A. The information is collected upon the request of the Attorney General of the State, a Prosecuting Attorney, a City Attorney, or the Department of Justice with respect to a person charged with a crime or ordinance violation, or with respect to a person facing civil commitment after commitment proceedings have been filed, and the information is reasonably relevant to the investigation or judicial proceedings.
B. The information is collected about a person reasonably suspected of involvement in corruption or malfeasance in office of a governmental official or employee, and the information reasonably appears relevant thereto; and/or
C. The information is collected about an applicant as part of and relevant to a background investigation of the applicant for employment or promotion with the City or a City license or commission; or the subject of the information has consented in writing to its collection.
(Ord. 110572 § 10, 1982: Ord. 108333 § 9, 1979.)
14.12.120 Exclusions.
A. This chapter shall not restrict:
1. Activities by departmental personnel as private citizens not related to their law enforcement functions;
2. The collection of information about police conduct by the Department Internal Investigations Section;
3. The participation of departmental personnel in their official capacities in the City's administrative and legislative processes with respect to Department operations to the same extent and in the same manner as other City departments; or
4. Personal communications to, and personal papers of, the Chief of the Department personally maintained in his own office, provided such materials do not include investigatory information.
B. Nothing in this chapter shall restrict or forbid departmental personnel from complying with a court order.
(Ord. 110572 § 11, 1982: Ord. 108333 § 10, 1979.)
Subchapter III 14.12.130 Collection and use.
Private sexual information shall not be collected unless the information involves: a reported or observed sex crime; an apparent felony where a motivation for the crime may reasonably be suspected to be sexual in origin; a violation of the law that by its nature is commonly related to sexual activity (for example, prostitution, pandering, procuring, lewd conduct, or pornography); or the information is about a subject or fugitive and may reasonably lead to his or her arrest. The private sexual information collected shall reasonably appear relevant to the investigation of unlawful activity or to making an arrest of the subject of the information.
(Ord. 110640 § 6, 1982: Ord. 110572 § 12, 1982: Ord. 108333 § 11, 1979.)
14.12.140 Receipt and transmission.
A. Unless Section 14.12.130 applies, private sexual information received from another criminal justice or governmental agency shall be purged within the sooner of seven (7) working days or of the placement of other material which was received with the private sexual information into an investigatory file, the commingling of the other material with other Department files and records, or the indexing of the other material in the Department's record system.
B. Private sexual information shall not be transmitted to another criminal justice or governmental agency unless:
1. The recipient agency has a need for the information which satisfies the requirements of Section 14.12.130, or a subpoena, court order, or statutory mandate requires the production of the information; and a log of each written transmission is maintained which contains the name of the subject of the information and the recipient agency; or
2. The information is transmitted to the King County Prosecuting Attorney or the City Attorney in connection with a pending investigation of unlawful activity or a judicial proceeding.
(Ord. 110572 § 13, 1982: Ord. 108333 § 12, 1979.)
Subchapter IV 14.12.150 Collecting restricted information.
A. Departmental personnel shall not collect any restricted information for any use other than for dignitary protection without an authorization by a unit commander of the rank of lieutenant or above; provided, when time is of the essence, departmental personnel may collect restricted information under the condition that it shall be purged within five (5) working days unless an authorization for its collection is granted.
B. An investigating officer may secure an authorization under this section from a lieutenant or higher-ranking officer who is in his or her chain of command or has supervision over the investigation. The authorization may adopt a written request from a Prosecuting Attorney, a City Attorney, the Attorney General of the State, or the Attorney General of the United States made in the court of and for performance of the duties of their respective offices.
C. Such an authorization may be granted only when:
1. There is a reasonable suspicion that the subject of the restricted information has engaged in, is engaging in, or is about to engage in unlawful activity, or that the restricted information about the subject may reasonably lead to his or her arrest, or that the restricted information is collected about a victim or witness for the purpose of discovering his or her knowledge or evaluating his or her reliability;
2. The restricted information to be collected appears relevant to the investigation of the suspected unlawful activity described in subsection C1 of this section, or appears relevant to making an arrest of the subject of the restricted information; and
3. The collection of the restricted information is consistent with the statement of purpose, policies, and other provisions of this chapter.
D. No informant or infiltrator may be used to collect restricted information about a victim or witness; restricted information about a victim or witness may not be indexed under his or her name.
E. Notice of each authorization shall be given to the Auditor.
F. Authorizations shall be in effect for no more than ninety (90) days.
(Ord. 110572 § 14, 1982: Ord. 108333 § 13, 1979.)
14.12.160 Contents of an authorization.
A unit commander or higher-ranking officer of the Department shall include in the written authorization his or her opinion that the criteria in Section 14.12.150 are satisfied, as well as the following information:
A. The identity of the subject about whom the restricted information will be collected, if known;
B. The violation of law under investigation to which the restricted information is deemed relevant and, in the event that the violation of law has not yet occurred, the approximate date of the violation, if known;
C. An explanation of the restricted information likely to be sought and its relevance to the violation of law or the arrest of the subject;
D. A statement of the facts and circumstances creating a reasonable suspicion that the subject of the restricted information has engaged in, is engaging in, or is about to engage in unlawful activity, or that restricted information may lead to the subject's arrest; or if the restricted information concerns a victim or witness, the facts and circumstances creating a reasonable suspicion that the victim or witness has information about the particular incident under investigation, and an explanation of why collection of the restricted information is deemed necessary;
E. If an informant or infiltrator will be used to gather restricted information, the reasons why the use of an informant or infiltrator is deemed necessary for law enforcement purposes.
(Ord. 110572 § 15, 1982: Ord. 108333 § 14, 1979.)
14.12.170 Additional authorizations.
After an authorization expires, the Chief of the Department may authorize the collection of restricted information for additional periods of up to ninety (90) days each as often as may be necessary for the completion of an investigation of specified unlawful activity, but in no event longer than the expiration of the statute of limitations or the prosecution of a case. The additional authorization, together with the documentation preceding it, shall describe the restricted information already collected and identify the investigation to be completed or the case to be prosecuted. An additional authorization shall satisfy the criteria in Sections 14.12.150 and 14.12.160, be substantiated by the information already collected, and justify the need to collect additional restricted information.
(Ord. 110572 § 16, 1982: Ord. 108333 § 15, 1979.)
14.12.180 Actions after authorization.
The collection, maintenance, and use of restricted information pursuant to an authorization under Sections 14.12.150/14.12.160, or 14.12.170 shall be limited to the scope stated in the authorization.
(Ord. 110572 § 17, 1982: Ord. 108333 § 16, 1979.)
14.12.190 Receipt of restricted information.
Unless an authorization has been given under Sections 14.12.150/14.12.160, 14.12.170, or 14.12.230, restricted information received from another criminal justice or governmental agency shall be purged or, if the restricted information is useful for dignitary protection, transferred to departmental personnel with such responsibilities within the sooner of seven (7) working days or of the placement of other material which was received with the restricted information into an investigatory file, the commingling of the other material with other Department files and records, or the indexing of the other material in the Department's record system.
(Ord. 110572 § 18, 1982: Ord. 108333 § 17, 1979.)
14.12.200 Transmission of restricted information.
A. Restricted information shall not be transmitted to another criminal justice or governmental agency unless:
1. The recipient agency has a need for the information based upon facts sufficient to obtain an authorization under Sections 14.12.150/14.12.160 or 14.12.230, or a subpoena, court order, or statutory mandate requires the production of the information; a log of each written transmission shall be maintained which contains the name of the subject of the information and the recipient agency; or
2. The information is transmitted to the King County Prosecuting Attorney or the City Attorney in connection with a pending investigation of unlawful activity or a judicial proceeding.
B. Wherever practical, the first page and each page containing restricted information in a document transmitted to a recipient agency shall contain a prominent notice limiting dissemination or use to the specific purpose for which the document was transmitted, unless otherwise authorized by the Chief of the Department.
C. Nothing in this section shall prevent departmental personnel from transmitting an evaluation of information or pooling information in a common investigation of a series of related incidents as long as restricted information is not disclosed.
(Ord. 110640 § 7, 1982; Ord. 110572 § 19, 1982: Ord. 108333 § 18, 1979.)
Subchapter V 14.12.210 Collecting and filing restricted information.
A. Departmental personnel assigned the duty of providing for the security and protection of visiting officials and dignitaries may collect restricted information for investigatory purposes under Sections 14.12.150 through 14.12.190, or for dignitary protection under Sections 14.12.220, 14.12.230, and 14.12.240, and may transmit restricted information in accordance with Sections 14.12.200 or 14.12.240.
B. Unless an authorization pursuant to Sections 14.12.150/14.12.160 or 14.12.170 allows its use for a criminal investigation, restricted information collected under Sections 14.12.220, 14.12.230, and 14.12.240 shall be subject to the following conditions:
1. The restricted information shall be maintained in a separate record system under the custody of the departmental personnel assigned to providing security and protection for visiting officials and dignitaries (called dignitary protection files herein), indexed separately, and accessible only to these departmental personnel and their supervisors;
2. Collection of restricted information, other than unsolicited communication, may not begin before departmental personnel receive notice of an anticipated arrival date of the visiting official or dignitary for whom security and protection are to be provided, and shall cease upon notice that the anticipated visit will not occur or upon the visitor's departure from the City, whichever occurs sooner;
3. A log shall be kept, including each access made to the dignitary protection files and the reason thereof;
4. The restricted information shall be used only for providing necessary security and protection for visiting officials and dignitaries;
5. The restricted information shall be purged within sixty (60) days after the authorization for its collection expires, unless a unit commander certifies that the subject of the information poses, has posed, or has made a threat to the life or safety of a visiting official or dignitary; or the retention of the information may be necessary for pending or future civil or criminal litigation involving the City; and
6. The dignitary protection files shall be reviewed annually under the direction of the Chief of the Department, and the restricted information deemed no longer relevant to protecting visiting officials and dignitaries shall be purged. Transfers to other uses may be made of restricted information collected under Sections 14.12.220 or 14.12.230 with an authorization under Sections 14.12.150, 14.12.160, and 14.12.170.
(Ord. 110640 § 8, 1982; Ord. 110572 § 20, 1982: Ord. 108333 § 19, 1979.)
14.12.220 Collecting restricted information without an authorization.
Departmental personnel assigned the duty of providing for the security and protection of visiting officials and dignitaries may, without an authorization:
1. Collect restricted information from records open for public inspection, newspapers and libraries, and written communications directed at the general public;
2. Collect restricted information about a demonstration or activity directly from a person who is planning the demonstration or activity in connection with a visiting official or dignitary and who is advised of the purpose of the inquiry;
3. Accept an unsolicited communication;
4. Collect restricted information from another criminal justice or governmental agency which was originally derived from public sources, from direct communication with the subject of the information, or as an unsolicited communication; and/or
5. When time is of the essence, collect restricted information on the condition that it shall be purged within twenty-four (24) hours after receipt, unless an authorization is granted under Sections 14.12.150 or 14.12.230.
(Ord. 110572 § 21, 1982: Ord. 108333 § 20, 1979.)
14.12.230 Authorizations for dignitary protection.
A. The Chief of the Department may authorize the collection of restricted information when there is a reasonable suspicion that the subject of the restricted information could pose a threat to the life or safety of a visiting official or dignitary. When time is of the essence, an authorization may be requested and given orally, but the authorization shall be reduced to writing within two (2) working days. An authorization under this section shall limit the use of the restricted information collected to dignitary protection purposes, unless an authorization granted under Sections 14.12.150/14.12.160 or 14.12.170 allows the information to be used for a criminal investigation.
B. An authorization for dignitary protection shall include:
1. The identity of the subject about whom the restricted information will be collected, if known;
2. The name of the visiting official or dignitary to be protected and his or her anticipated date of arrival;
3. An explanation of the restricted information likely to be sought;
4. The facts and circumstances that provide the Chief of the Department a reasonable suspicion that the subject of the restricted information could pose a threat to the life or safety of a visiting official or dignitary; and
5. If an informant or infiltrator will be used to gather restricted information, the reasons why the use of an informant or infiltrator is deemed necessary for dignitary protection.
C. Notice of each authorization shall be given to the Auditor.
D. The collection of restricted information pursuant to an authorization for dignitary protection shall be limited to the scope stated in the authorization.
(Ord. 110640 § 12, 1982: Ord. 110572 § 22, 1982: Ord. 108333 § 21, 1979.)
14.12.240 Receipt and transmission of restricted information.
A. Sections 14.12.190 and 14.12.200 controlling the receipt and transmission of restricted information from and to another criminal justice or governmental agency applies to the handling of restricted information by departmental personnel assigned the duty of providing for the security and protection of visiting officials and dignitaries, unless the information is collected and transmitted in conjunction with a task force. Restricted information collected for an operating task force may be transmitted or purged with other task force materials.
B. Departmental personnel serving on or working with a task force of cooperating law enforcement and governmental agencies to provide security and protection while a visiting official or dignitary is present, and/or for a period of up to ten (10) days prior to his or her scheduled visit, may:
1. Collect restricted information from cooperating agencies, provided that the information shall be purged within ten (10) days after the visiting official or dignitary departs, unless an authorization under Sections 14.12.150/14.12.160 or 14.12.170 or a certification under Section 14.12.210 B5 allows its retention; and/or
2. Transmit restricted information collected by departmental personnel to other cooperating agencies, provided that wherever practical, the first page and each page containing restricted information in a document transmitted shall contain a prominent notice limiting dissemination or use of the information to the specific purposes for which the document was transmitted, unless otherwise authorized by the Chief of the Department.
C. A log of each written transmission shall be maintained which contains the name of the subject of the restricted information and the recipient agency.
D. Nothing in this section shall prevent departmental personnel from transmitting an evaluation of information or pooling information in a common investigation of a series of related incidents as long as restricted information is not disclosed.
(Ord. 110572 § 23, 1982: Ord. 108333 § 22, 1979.)
Subchapter VI 14.12.250 Use of infiltrators.
No infiltrator shall be used or recruited to collect restricted information on a continuing basis from within and about a political or religious organization, an organization formed for the protection or advancement of civil rights or liberties, or an organization formed for community purposes, unless:
A. Use of the infiltrator is contemplated by an authorization to collect restricted information on the organization pursuant to Sections 14.12.150/14.12.160, 14.12.170, or 14.12.230;
B. The Chief of the Department approves in writing the use of the infiltrator and certifies that infiltrating the organization is necessary, and that reasonable means have been designed to: (1) confine collection of the restricted information to matters contemplated by the authorization; (2) conduct the collection of the information in a manner consistent with the statement of purpose, policies, and provisions of this chapter; and
C. The Chief of the Department or his designee has established a procedure for review at the end of each authorization period to determine compliance with all rules, regulations, and procedures designed to minimize the acquisition, retention, and disclosure of restricted information which does not relate to the matter under investigation and to protect against unreasonable infringement upon the rights, liberties, and freedoms described in Section 14.12.010 A.
(Ord. 110640 § 10, 1982; Ord. 110572 § 24, 1982: Ord. 108333 § 23, 1979.)
14.12.260 Use of informants.
An informant paid by the City to collect restricted information shall be instructed that in carrying out an assignment he or she shall not:
A. Participate in unlawful acts of violence;
B. Use unlawful techniques to obtain information;
C. Initiate a plan to commit criminal acts; or
D. Participate in criminal activities of persons under investigation, except insofar as the supervisor over the investigation determines that such participation is necessary to obtain information needed for purposes of prosecution.
(Ord. 110640 § 11, 1982; Ord. 110572 § 25, 1982: Ord. 108333 § 24, 1979.)
14.12.270 Use of modus operandi (MO) files.
Restricted information about a person under a true name may only be added to an MO file where there is probable cause to suspect the subject of the restricted information has committed unlawful activity. This section does not limit indexing restricted information about an incident by subject matter.
(Ord. 110572 § 26, 1982: Ord. 108333 § 25, 1979.)
14.12.280 Prohibited activities.
Departmental personnel in the course and scope of their duties shall not wilfully:
A. Incite any person to commit unlawful violent activity or engage another person to do so, provided that nothing in this section shall be interpreted to prohibit thwarting, detecting, or securing evidence of unlawful activity conceived by another, or the use of decoys; or
B. Communicate information known to be false or derogatory with the intention of disrupting any lawful political or religious activity, unless such communication occurs in the course of or in connection with a judicial proceeding, or serves a valid law enforcement purpose.
(Ord. 110640 § 12, 1982; Ord. 110572 § 27, 1982: Ord. 108333 § 26, 1979.)
Subchapter VII 14.12.290 Powers and functions.
Whenever appropriations for the Department Criminal Information Section are included in the City's annual operating budget, the Section shall be authorized to perform the following functions, subject to the provisions of this chapter:
A. To collect, evaluate, organize, and analyze data and specific investigative information about the existence, structure, activities, and operations of organized criminal activity which appears to involve regular coordination and organization among a number of individuals, and the participants in such activities;
B. To collect, evaluate, and classify information about incidents of unlawful activity, confirming the degree of accuracy of the information whenever possible; to store and/or disseminate only that private sexual or restricted information which appears to have a reasonable degree of reliability and to store and disseminate other information only if it is accompanied by an assessment of reliability; and to purge information that is no longer relevant;
C. To coordinate such information into a centralized system of criminal intelligence information and to study, detect, and explain any meaningful patterns of unlawful activities;
D. To furnish and exchange relevant criminal intelligence information with criminal justice agencies, to maintain liaison with other criminal intelligence activities, and to initiate inquiries and conduct criminal investigations;
E. To support other Department activities and units by delivering pertinent criminal intelligence information and to coordinate information that involves multiple investigatory divisions or units, at the direction of the Chief of the Department;
F. Upon request and at the direction of the Chief of the Department, to assist law enforcement agencies, the City Attorney, the King County Prosecuting Attorney, and the United States District Attorney in developing evidence for purposes of criminal prosecution of organized criminal activities;
G. To develop training programs that assist the Department's tactical units in detecting and gathering information relevant to criminal investigations being conducted by the Criminal Information Section; and
H. To develop methods for evaluating the effectiveness of the Criminal Information Section in accomplishing its law enforcement purposes and safeguarding the constitutional rights and privacy of all individuals.
(Ord. 110572 § 28, 1982: Ord. 108333 § 27, 1979.)
14.12.300 Responsibilities.
In performing their responsibilities, departmental personnel assigned to the Criminal Information Section shall:
A. Maintain the integrity and security of all information contained in the Department's Criminal Information Section filing system;
B. Follow ethical and legal police procedures in obtaining information, including, but not limited to, the provisions of this chapter; and
C. Whenever practical, avoid direct involvement in the conduct of tactical law enforcement operations.
(Ord. 110572 § 29, 1982: Ord. 108333 § 28, 1979.)
Subchapter VIII 14.12.310 Appointment and responsibilities of Auditor.
A. The Mayor shall appoint an Auditor, subject to confirmation by the City Council, to monitor compliance with this chapter. The Auditor shall serve for a term of three (3) years and may be reappointed by the Mayor, subject to confirmation by the City Council. The Auditor may be removed from office for cause by the Mayor by filing a statement of reasons for the removal with the City Council.
B. The Auditor should possess the following qualities and characteristics:
1. A reputation for integrity and professionalism, as well as the ability to maintain a high standard of integrity in the office;
2. A commitment to and knowledge of the need for and responsibilities of law enforcement, as well as the need to protect basic constitutional rights;
3. A commitment to the statement of purpose and policies in this chapter;
4. A history of demonstrated leadership experience and ability;
5. The potential for gaining the respect of departmental personnel and citizens of the City;
6. The ability to work effectively with the Mayor, the City Council, the City Attorney, the Chief of the Department, departmental personnel, public agencies, private organizations, and citizens; and
7. The ability to work effectively under pressure.
C. The Chief of the Department shall cause a thorough background check of nominees for Auditor identified by the Mayor and shall report the results to the Mayor.
D. Except as limited by Section 14.12.320, the Auditor shall have access to all Department files and records, including nonconviction data pursuant to RCW 10.97.050(4).
(Ord. 110640 § 13, 1982: Ord. 110572 § 31, 1982: Ord. 109237 § 1, 1980: Ord. 108333 § 29, 1979.)
14.12.320 Limitations on the Auditor.
A. The Auditor shall not examine the following:
1. Department personnel files;
2. Internal Investigation Section files;
3. Files of confidential communications as defined in Section 14.12.090;
4. Personal files of the Chief of the Department which are excluded from this chapter by Section 14.12.120 A4;
5. Specific case files which the King County Prosecuting Attorney personally certifies in writing need to be withheld from the Auditor's review because the files involve investigations of corruption or malfeasance in office of a governmental official or employee, a potential conflict of interest for the Auditor, or investigations of organized criminal activity conducted as a continuing enterprise solely for the purpose of obtaining monetary gain wholly or in part through racketeering, vice, narcotics, gambling, fencing, or similar economic criminal activity. As to each file, the Prosecuting Attorney's certificate shall state that he has personally reviewed the case file and found that the file complies with this chapter. The Prosecuting Attorney's certificate shall also include a summary apprising the Auditor of the scope and purpose of the investigation. With respect to the certified files, the Prosecuting Attorney shall exercise all the powers and discharge all the responsibilities normally exercised and discharged by the Auditor under the provisions of this chapter;
6. Files maintained exclusively for confidential criminal information regarding organized criminal activity received by the Department through membership in the Law Enforcement Intelligence Unit (LEIU) and files maintained exclusively for confidential criminal information regarding narcotics activity received by the Department through membership in the Western States Information Network (WSIN), which are audited under subsection C.
B. In discharging his or her responsibilities, the Auditor shall protect the confidentiality of Department files and records, and shall also be bound by the confidentiality provisions of the Criminal Records Privacy Act (RCW 10.97), the Public Disclosure Act (RCW 42.17), and the provisions of RCW 43.43.856. The Auditor shall not identify the subject of an investigation in any public report required by this chapter. The Auditor shall not remove from Department facilities any record, extract, or other information, the disclosure of which is exempt from public disclosure under the Public Disclosure Act (RCW 42.17.310). Any violation of the confidentiality of Department files and records or the provisions of this chapter shall be sufficient cause for removal of the Auditor.
C. The Chief of the Department shall exercise all the powers and discharge all the responsibilities normally exercised and discharged by the Auditor with respect to files maintained exclusively for confidential criminal information obtained through the Department membership in the Law Enforcement Intelligence Unit (LEIU) and the Western States Information Network (WSIN), which shall be limited to and subject to the following definitions and conditions:
1. All information designated for audit by the Chief shall meet all the provisions of this chapter controlling the collection, receipt and/or transmittal of information.
2. Only information regarding organized criminal activity obtained by a designated departmental LEIU representative, or information regarding criminal narcotics activity obtained by a designated departmental WSIN representative, from designated LEIU or WSIN representatives, respectively, in other agencies, will be audited under this subsection by the Chief. All other information collected from outside agencies will be subject to audit by the appointed Auditor.
3. "Organized criminal activity" is defined as conduct that relates to a continuing enterprise engaged in solely for the purpose of obtaining monetary gain wholly or in part through racketeering, vice, narcotics, gambling, fencing, or similar criminal activity.
4. "Criminal narcotics activity" is defined as conduct that relates to the illegal manufacture, transportation, distribution, or sale of narcotics or other controlled substances.
5. All information designated for audit by the Chief shall be filed separate from other Department files.
6. Access to the information designated for audit by the Chief shall be limited to police officers specifically designated by the Chief of Police.
7. Information designated for audit by the Chief shall not be referenced or indexed in other Department files.
D. The Chief of the Department shall submit a final report of his/her audit to the Mayor. The Chief's report shall be comparable to that of the Auditor as prescribed in Section 14.12.330 B2, except that the Chief's report shall include a description of each type of document audited without disclosing its contents, the number of each type of document audited, the number of documents received from LEIU or WSIN, and the number of documents received from designated LEIU or WSIN representatives. The Chief's report shall also include a current set of bylaws for LEIU and for WSIN. The Mayor shall certify the report as the final audit to the City Council, the City Attorney, and the City Clerk for filing as a public record. The Mayor, in the exercise of all of his/her duties under the City Charter, shall supervise the Chief of the Department to ensure that he/she faithfully performs the duties assigned under this chapter and section.
E. Failure of the Chief of the Department to send any notice required by Section 14.12.340 or to report any substantial violation of this chapter as required by Section 14.12.330 B2 shall effect his immediate suspension from office without pay and shall be cause for his/her removal from office. Failure of the Chief of the Department to discharge any other duties required by this subsection may be cause for his/her suspension or removal from office.
(Ord. 117242 § 15, 1994; Ord. 110640 § 13, 1982; Ord. 110572 § 31, 1982: Ord. 108333 § 30, 1979.)
14.12.330 Audit procedures and standards.
A. The Auditor shall conduct an in-place audit of Department files and records at unscheduled intervals not to exceed one hundred eighty (180) days since the last audit. The Department shall provide temporary space for the Auditor to conduct the audit in secure areas close to the records to be reviewed by the Auditor.
B. The audit shall be prepared and published pursuant to the following provisions:
1. In conducting an audit, the Auditor shall:
a. Review each authorization granted pursuant to Sections 14.12.150/14.12.160, 14.12.170, or 14.12.230, together with investigative files associated with the authorizations;
b. Perform a random check of Department files and indexes;
c. Review files and records containing private sexual or restricted information designated for purging except information not yet collected or purged pursuant to Sections 14.12.140, 14.12.150, 14.12.190, or 14.12.240; and
d. Prepare and forward a written report of the audit to the Mayor, the City Council, the City Attorney, and the City Clerk for filing as a public record.
2. The Auditor's report shall contain a general description of the files and records reviewed and a discussion of any substantial violation of this chapter discovered during the audit. A preliminary report shall be delivered by the Auditor to the Chief of the Department for review and comment. The Chief of the Department shall review and comment on the preliminary report within twenty (20) days after receipt of the report. The Auditor shall submit the final report within thirty (30) days after receipt of the Chief's comments.
3. The Chief of the Department shall:
a. Forward to the Mayor, the City Council, the City Attorney, and the City Comptroller within ten (10) working days of receipt of the Auditor's final report the Chief's written comments on the report; and
b. Cause an immediate investigation into the circumstances of any apparent violations of this chapter reported by the Auditor.
(Ord. 117242 § 16, 1994; Ord. 110572 § 32, 1982: Ord. 108333 § 31, 1979.)
14.12.340 Notice of substantial violations.
A. The Auditor shall notify by certified mail any person about whom restricted information has been collected where the Auditor has a reasonable belief that the restricted information was collected in violation of this chapter and would create civil liability under Section 14.12.350. Notice shall be sent to the person's last known address within six (6) months after the expiration of the last authorization, or within sixty (60) days after the Department, the City Attorney, or the King County Prosecuting Attorney determines that no prosecution will be brought as a result of the unlawful activity prompting the investigation, whichever date is earlier. The Auditor's notice does not constitute an admission of fact or liability by the City.
B. At least five (5) working days before mailing the notice, the Auditor shall inform the Chief of the Department of his/her intent to mail the notice. If during the interim the Auditor receives information that the notice would endanger an ongoing investigation, the Auditor shall delay the mailing for such period of time as he or she is satisfied that mailing the notice would endanger the ongoing investigation.
C. The Auditor shall identify the information giving rise to the notice of substantial violation. The Department shall retain the information until expiration of the statute of limitations for civil action by the subject of the notice.
(Ord. 110572 § 33, 1982: Ord. 108333 § 32, 1979.)
Subchapter IX 14.12.350 Civil liability.
A. Subject to the limitations of this section and Section 14.12.360, a person shall have a right of action against the City based on this chapter for injuries proximately caused by departmental personnel wilfully in the scope and course of their duties:
1. Collecting private sexual information when Section 14.12.130 prohibits collection of such information;
2. Collecting restricted information where the prohibition of Section 14.12.150 applies, no authorization was obtained, and under the facts and circumstances known to departmental personnel, no authorization could validly have been granted; or alternatively, the restricted information collected was both outside the scope of the authorization granted and was not relevant to an investigation of unlawful activity, the making of an arrest or a judicial proceeding;
3. Using an infiltrator with the intention of collecting restricted information from within and about a political or religious organization, an organization formed for the protection or advancement of civil rights or liberties, or an organization formed for community purposes in violation of Section 14.12.250 where there is no reasonable suspicion that the subject of the restricted information has engaged in, is engaging in, or is about to engage in unlawful activity, or that the restricted information will lead to the subject's arrest;
4. Inciting another person to commit unlawful violent activity or engaging another person to do so in violation of Section 14.12.280 A; and/or
5. Communicating information known to be false or derogatory with the intention of disrupting any lawful political or religious activity in violation of Section 14.12.280 B, provided no cause of action may be based upon an arrest based upon probable cause or an order to disperse an assemblage made in accordance with Section 12A.12.020 of this Code.
B. Absent evidence establishing a greater amount of damages, the damages payable in event of an injury proximately caused by collection of private sexual or restricted information in violation of this chapter, as contemplated by subsections A1 or A2, shall be Five Hundred Dollars ($500.00) to each subject of the private sexual or restricted information for all such information collected, and for the use of an infiltrator in violation of Section 14.12.250, as contemplated by subsection A3, shall be One Thousand Dollars ($1,000.00) aggregate for the organization and all its members as a class. The payment of damages under subsection A3 to the organization, or its members as a class, is in addition to any rights of any person within the organization under subsections A1 or A2.
C. No cause of action may be based upon the activity of departmental personnel in complying with a court order, or an action taken pursuant to and within the scope of an authorization under Sections 14.12.150/14.12.160, 14.12.170, 14.12.230 or 14.12.250.
D. The City reserves all defenses at law consistent with this chapter, including but not limited to consent, privilege, participation, and waiver, and as to departmental personnel or a City official, any defense arising in the employer/employee or principal/agent relationship.
(Ord. 110640 §§ 14, 15, 1982; Ord. 110572 § 34, 1982: Ord. 108333 § 33, 1979.)
14.12.360 Liability of officers and employees.
No cause of action may be based upon this chapter against the Mayor, the Chief of the Department, any departmental personnel, or any other City officer or employee, individually, for any action or omission made in good faith in the scope and course of his or her duties. In the event such a lawsuit is brought against a City officer or employee, individually, for such an action or omission, and the officer or employee cooperates fully in defense of the lawsuit, the City Attorney may represent the individual and defend the litigation. If the claim is deemed a proper one or judgment is rendered against the City officer or employee individually, the judgment shall be paid by the City in accordance with its procedures for the settlement of claims and payment of judgments.
(Ord. 110572 § 35, 1982: Ord. 108333 § 34, 1979.)
14.12.370 Rules and regulations.
A. Consistent with the statement of purpose, policies, and provisions of this chapter, the Chief of the Department shall promulgate rules and regulations to implement this chapter in accordance with the procedures of Ordinance 102228 (the City's Administrative Code),* as amended, or a successor ordinance. The rules and regulations shall be designed to protect constitutional rights and personal privacy, so that investigations are conducted without an unreasonable degree of intrusion and that private sexual and restricted information obtained in the course of an investigation is properly authorized under this chapter.
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Editor's Note: The Administrative Code is codified in Chapter 3.02 of this Code.
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B. The Chief of the Department shall also promulgate rules and regulations to govern the use of informants, infiltrators, and photographic surveillance related to restricted information, consistent with the statement of purpose, policies, and provisions of this chapter, and may promulgate rules and regulations governing other investigatory techniques to the extent he deems necessary to carry out the statement of purpose, policies, and provisions of this chapter.
(Ord. 110572 § 36, 1982: Ord. 108333 § 35, 1979.)
14.12.380 Department reporting.
The Chief of the Department shall submit an annual report on the implementation of this chapter to the Mayor, the City Council, and the City Clerk for filing as a public record. The annual report shall indicate the number of authorizations granted under Sections 14.12.150/14.12.160, 14.12.170, or 14.12.230; the number of certifications issued under Section 14.12.210 B5; the number of files withheld from the Auditor by the King County Prosecuting Attorney under Section 14.12.320 A5; the number of authorizations involving the use of infiltrators and informants; a statistical analysis of the purposes for which authorizations were granted, the types of unlawful activity involved, the number of prosecutions based thereon, the number of visiting officials or dignitaries for whom security precautions were involved, and other meaningful information; a summary of any internal disciplinary action taken to enforce this chapter; and a description of other actions taken to implement this chapter. The foregoing information may be included in the Department's annual report.
(Ord. 117242 § 17, 1994: Ord. 110640 § 16, 1982: Ord. 110572 § 37, 1982: Ord. 108333 § 36, 1979.)
14.12.390 Administrative penalties.
Any departmental personnel in an office or other place of employment of the City who violates this chapter, or any implementing rule or regulation of the Chief of the Department shall be subject to the disciplinary proceedings and punishment authorized by the City Charter, Article XVI,1 including reprimand, suspension without pay, and discharge, or provided by Ordinance 107790, as amended (the City's Public Safety Personnel Ordinance),2 or a successor ordinance.
(Ord. 110572 § 38, 1982: Ord. 108333 § 37, 1979.)
1. Editor's Note– The City Charter is included at the beginning of this Code.
2. Editor's Note– Ord. 107790 is codified in Chapter 4.04 of this Code.
14.12.400 Administrative penalties for supervisors.
An official who has authorized pursuant to Section 14.12.130 through 14.12.200 of this chapter, inclusive, the collection of restricted information shall be subject to administrative discipline, as contemplated in Section 14.12.390, for misconduct of a subordinate officer in collecting the information authorized if the authorizing official knows or should have known of the misconduct.
(Ord. 110572 § 39, 1982: Ord. 108333 § 38, 1979.)
Chapter 14.14 Sections:
General Provisions
Unfair Employment Practices and Exclusions
Administration and Enforcement
UNFAIR PUBLIC ACCOMMODATIONS PRACTICES
UNFAIR HOUSING PRACTICES*
FAIR CONTRACTING PRACTICES
COLLECTION OF INFORMATION FOR LAW ENFORCEMENT PURPOSES*
General Provisions
Scope– Exemptions and Exclusions
Handling Private Sexual Information
Handling Restricted Information for Criminal Investigations
Handling Restricted Information for Protecting Dignitaries
Police Operations
Criminal Information Section
Auditing and Notice Requirements
Civil Liability, Enforcement and Penalties
HUMAN DIGNITY