AN ORDINANCE to be known as the Fair Contracting Practices Ordinance and prohibiting discrimination in contracting; providing remedies for victims of such discrimination, and creating a new position and increasing expenditure allowance in the 1999 Seattle Office for Civil Rights budget.

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Statement of purpose. This ordinance 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, or the presence of any sensory, mental or physical 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 ordinance 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 ordinance 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 ordinance 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 ordinance on the part of the City by its officers, employees or agents. Nothing in this ordinance shall be presumed to toll the statute of limitations for any claims under federal or state statute. Nothing in this ordinance 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.

Section 2. Definitions. When used in this ordinance, 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 103387, 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.

"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; or the presence of any sensory, mental or physical handicap, 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.

"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" shall include 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 ordinance.

"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.

Section 3. 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 ordinance;

Section 4. 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 ordinance, 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 ordinance; and shall have such powers and duties in the performance of these functions as are defined in this ordinance 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 ordinance.

The Director is authorized and directed to promulgate rules consistent with this ordinance.

Section 5. 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.

Section 6. Charge-Time for filing. Charges filed under this ordinance must be filed with the Department within one hundred eighty (180) days after the occurrence of the alleged unfair contracting practice.

Section 7. 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.

Section 8. 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.

Section 9. 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.

Section 10. Determination of no reasonable cause. If a determination is made that there is no reasonable cause for believing an unfair contracting practice under this ordinance 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.

Section 11. 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 ordinance, 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 ordinance pursuant to Section 13.

Section 12. 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 ordinance.

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 ordinance, 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 includes a monetary payment which exceeds the sum of Ten Thousand Dollars ($10,000.00), 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 Ten Thousand Dollars ($10,000.00) 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.

Section 13. Charge and hearing of cases. A. Following submission of the investigatory file from the Director in cases involving all respondents under Section 11, 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 ordinance and the Administrative Code of the City (Ordinance 102228).

Section 14. 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 ordinance, 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 ordinance, 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 ordinance, 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). 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.

Section 15. Violation-Penalty. It is unlawful for any person to willfully engage in an unfair practice under this ordinance or wilfully resist, prevent, impede or interfere with the Director or Hearing Examiner in the performance of their duties under this ordinance, 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 ($500.00).

Section 16. Requirement to comply. The City shall include the requirement to comply with this ordinance, 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.

Section 17. 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 6, 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 C(2), upon the filing of a civil action involving the same claim or arising from the same facts and circumstances, whether under this ordinance 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 ordinance, 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. 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 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 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 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 ordinance or is authorized by the Washington Law Against Discrimination, Ch. 49.60 RCW, as amended. Damages awarded under this section for humiliation and mental suffering are not subject to the limitation of Section 14.

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 13. Such intervention shall not be permitted in an action in which the City is a defendant.

Section 18. 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

Section 19. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances.

Section 20. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the _____ day of ____________, 1999, and signed by me in open session in authentication of its passage this _____ day of _________________, 1999.

_____________________________________

President _______ of the City Council

Approved by me this _____ day of _________________, 1999.

___________________________________________

Mayor

Filed by me this _____ day of ____________________, 1999.

___________________________________________

City Clerk

(Seal)

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August 9, 1999 112827.DOC (Ver. 3)