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AN ORDINANCE relating to discrimination in contracting; prohibiting discrimination in contracting; providing remedies for victims of that discrimination; adding a new chapter to the King County Code and prescribing penalties.
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BE IT ORDAINED BY THE COUNCIL OF KING COUNTY:
SECTION 1. Statement of purpose. This ordinance is an exercise of the police power of King County for the protection of the public welfare, health, peace and safety of the residents of King County and in fulfillment of the provisions of the constitution of this state. The King County council hereby finds and declares that practices of discrimination in contracting by business entities against any person on the basis of race, color, age, gender, marital status, sexual orientation, religion, ancestry, national origin, disability or the use of a service or assistive animal by an individual with a disability constitute matters of local concern and are contrary to the public welfare, health, peace and safety of the residents of King County. This ordinance applies to: King County when King County is acting as a contractor or is awarding a contract; to other contractors, subcontractors, suppliers, materialmen, bonding agencies, contract agencies and other business entities and parties doing business in unincorporated King County, 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 those persons' civil rights. Nothing in this ordinance is intended to be nor shall be construed to create or form the basis for any liability on the part of King County, 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 King County 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.
NEW SECTION. SECTION 2. Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
A. "Business enterprise" means a licensed business organization located in or doing business in unincorporated King County or that is required to comply with this chapter by the terms of an agreement with King County under section 11 of this ordinance.
B. "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 office of civil rights enforcement when the office of civil rights enforcement files a charge.
C. "Commercially significant contract" means a 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 five thousand dollars.
D. "Contract" means an agreement to perform a service or provide goods that entails a legally binding obligation and that is performed or intended to be wholly or partly performed within, unincorporated King County or that includes King County as a party. "Contract" does not include the following: a contract for the purchase and sale of residential real estate; a contract for employment; and a collective bargaining agreement.
E. "Contracting agency" means a person who for compensation engages in recruiting, procuring, referral or placement of contracts with a contractor, and that is doing business in King county.
F. "Contractor" means a business enterprise, including but not limited to a company, partnership, corporation or other legal entity, excluding real property lessors and lessees, contracting to do business within the county. "Contractor" includes but is not limited to a public work contractor, a consultant contractor, a providers of professional services, a service agency, a vendor, and a supplier selling or furnishing materials, equipment, goods or services, but does not include a governmental agency other than King County.
G. "Discriminate," "discrimination" and "discriminatory act" mean a action, 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 reasons of race, color, age, gender, marital status, sexual orientation, religion, ancestry, national origin, disability or the use of a service or assistive animal by an individual with a disability, unless based upon a bona fide contractual qualification.
H. "Party" includes the person making a charge alleging an unfair contracting practice and the person alleged to have committed an unfair contracting practice.
I. "Person" includes one or more individuals, partnerships, business enterprises, associations, organizations, corporations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers or group of persons and includes King County.
J. "Respondent" means a person who has been alleged or found to have committed an unfair contracting practice prohibited by this chapter.
K. "Sexual orientation" means male or female heterosexuality, bisexuality or homosexuality, and includes a person's attitudes, preferences, beliefs and practices pertaining to sex.
L. "Trade association" means an association of businesses organizations engaged in similar fields of business that is formed for mutual protection, the interchange of ideas, information and statistics or the maintenance of standards within their industry.
NEW SECTION. SECTION 3. Unfair contracting practices prohibited. It is an unfair contracting practice for a:
A. King County government agency, business enterprise doing business in unincorporated King County or business enterprise required to comply with this chapter by the terms of an agreement with King County under section 11 of this ordinance to discriminate against a person with respect to the bid, award or referral of a contract or with respect to the conditions, terms, price, performance standards or other provisions of a contract;
B. Contracting agency or trade association to discriminate against a person with respect to membership rights and privileges, admission to or participation in a guidance program or other business or occupational training program;
C. Bonding company to discriminate against a person regarding the terms and conditions under which bonding services are offered or performed;
D. Contracting agency or trade association to discriminate against a person with respect to a referral of a contract opportunity or assignment of a particular contract;
E. Contractor, business enterprise, contracting agency or trade association to retaliate against a 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 an investigation, proceeding or hearing initiated under this chapter.
NEW SECTION. SECTION 4. Filing of complaint.
A. An individual complaint 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 that unfair contracting practice with the office of civil rights enforcement.
B. A complaint alleging that a group is being subjected to an unfair contracting practice in connection with a commercially significant contract may be filed by:
1. any member of the group;
2. the office of civil rights enforcement;
3. a state or federal agency concerned with discrimination in contracting whenever the agency has reason to believe that an unfair contracting practice has been or is being committed;
4. a trade association that has reason to believe that an unfair contracting practice has been or is being committed against any of its members.
C. A complaint alleging an unfair contracting practice shall be in writing on a form or in a format determined by the office of civil rights enforcement, shall be signed by the charging party, shall describe with particularity the unfair contracting practice complained of and shall include a statement of the dates, places and circumstances and the persons responsible for the acts and practices. The complaint must be filed within one hundred eighty days of the time of the alleged unfair contracting practice or within one hundred eighty days of when the charging party, through exercise of due diligence, should have had notice or been aware of the occurrence. However, a complaint shall not be rejected as insufficient because of failure to include all required information, if it substantially meets the informational requirements necessary for processing.
D. If a complaint has been filed in accordance with this chapter, the office of civil rights enforcement shall initiate an investigation under this chapter. If the office of civil rights enforcement determines that a violation of this chapter or a rule or regulation adopted under this chapter has occurred, the office shall issue an order in accordance with this chapter. With respect to violations of this chapter, the notice, service and hearings provisions in this chapter control over K.C.C. Title 23.
E. The charging party or the office of civil rights enforcement may amend a charge: to cure technical defects or omissions; or to clarify and amplify allegations made in the charge; 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, the 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 or retaliation, or both, that arose after filing of the original charge. The amendment must be filed within one hundred eighty days after the occurrence of the additional discriminatory act or retaliation, or both, and before the issuance of findings of fact and a determination with respect to the original charge by the office of civil rights enforcement. The amendments may be made at any time during the investigation of the original charge if the office of civil rights enforcement will have adequate time to investigate the additional allegations and the parties will have adequate time to present the office of civil rights enforcement with evidence concerning the allegations before the issuance of findings of fact and a determination.
F. Upon the receipt of a complaint, the office of civil rights enforcement shall serve notice upon the charging party acknowledging the filing.
NEW SECTION. SECTION 5. Complaint - investigation.
A. Upon receipt of a complaint meeting the requirements of section 4 of this ordinance, the office of civil rights enforcement shall, within twenty days, cause to be served or mailed to the respondent by certified mail, return receipt requested, a copy of the complaint along with a notice advising of procedural rights and obligations of respondents under this ordinance, and shall promptly make an investigation thereof. Each respondent may file an answer to the complaint, not later than twenty days after receipt of notice from the office of civil rights enforcement. If the respondent is unable to file a response within twenty days, the respondent may request an extension of time from the office of civil rights enforcement. The extension may be granted if good cause is shown.
B. The investigation shall be commenced promptly. It shall be directed to ascertain the facts concerning the discriminatory practice alleged in the complaint and shall be conducted in an objective and impartial manner.
C. During the investigation, the office of civil rights enforcement shall consider any statement of position or evidence with respect to the allegations of the complaint which the charging party or the respondent wishes to submit. A person who is not named as a respondent in a complaint, but who is identified as a respondent in the course of the investigation, may be joined as an additional or substitute respondent upon written notice to the person from the office of civil rights enforcement. The notice, in addition to meeting the requirements of subsection A of this section, shall explain the basis for the belief of the office of civil rights enforcement that the person to whom the notice is addressed is properly joined as a respondent.
D. During the period beginning with the filing of the complaint and ending with the issuance of the findings of fact, the office of civil rights enforcement shall, to the extent feasible, engage in settlement discussions with respect to the complaint. Nothing said or done in the course of the settlement discussions may be used as evidence in a subsequent proceeding under this ordinance without the written consent of the persons concerned. A prefinding 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 office of civil rights enforcement. Failure to comply with the prefinding settlement agreement may be enforced under section 8 of this ordinance.
E. The office of civil rights enforcement shall seek the voluntary cooperation of all persons: to obtain access to premises, records, documents, individuals and other possible sources of information; to examine, record and copy necessary materials; and to take and record testimony or statements of persons reasonably necessary for the furtherance of the investigation. The office of civil rights enforcement may conduct discovery in aid of the investigation by the following methods or others: deposition upon oral examination or written questions; written interrogatories; requests for the production of documents or evidence; inspection and physical and mental examinations; and requests for admissions. The office of civil rights enforcement may 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, access to evidence for the purpose of examination and copying as are necessary for the investigation. The office of civil rights enforcement shall consult with the prosecuting attorney before issuing any subpoena under this section.
F. If an individual fails to obey a subpoena, or obeys a subpoena but refuses to testify when requested concerning any matter under investigation, the office of civil rights enforcement may invoke the aid of the King County prosecuting attorney who may petition the King County superior court for an order or other appropriate action necessary to secure enforcement of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, shall set forth in what specific manner the subpoena has not been complied with and shall ask an order of the court to compel the witness to appear and testify or cooperate in the investigation of the unfair contracting practice.
G. If the office of civil rights enforcement concludes after the filing of a complaint that prompt judicial action is necessary to carry out the purposes of this chapter, the office of civil rights enforcement may invoke the aid of the prosecuting attorney who may file a civil action for appropriate temporary, injunctive or preliminary relief pending final disposition of the complaint.
H. The results of the investigation shall be reduced to written findings of fact and a finding shall be made that there either is or is not reasonable cause for believing that an unfair contracting practice has been or is being committed.
I. If a finding is made that there is no reasonable cause, the finding shall be served on the charging party and respondent. Within thirty days after service of the negative finding, the charging party may file a written request with the office of civil rights enforcement asking for reconsideration of the finding. The office of civil rights enforcement shall respond in writing within a reasonable time by granting or denying the request.
NEW SECITON. SECTION 6. Settlement.
A. If the finding is made initially or on request for reconsideration that reasonable cause exists to believe that an unfair contracting practice has occurred, the office of civil rights enforcement shall endeavor to eliminate the unfair practice by conference, conciliation and persuasion, which may include as a condition of settlement the elimination of the unfair contracting practice, actual damages including payment of lost profits not in excess of the amount of monetary damage actually incurred and damages caused by humiliation and embarrassment, attorneys' fees or such other requirements as may be agreed upon by the parties and the office of civil rights enforcement. A settlement agreement shall be reduced to writing and signed by the respondent and the charging party and shall be approved by the office of civil rights enforcement. An order shall then be entered by the office of civil rights enforcement setting forth the terms of the agreement. Copies of the order shall be delivered to all affected parties and the original of the order filed with the division of records and elections. Failure to comply with the postfinding settlement agreement or order may be enforced under section 8 of this ordinance. Each postfinding settlement agreement is a public record.
B. If an agreement cannot be reached, a finding to that effect shall be made by the office of civil rights enforcement and incorporated in the order, with the copy thereof furnished to the complainant and the respondent. The order shall also include:
a. a finding that an unfair contracting practice has occurred;
b. the basis for the finding;
c. an order requiring the respondent to cease and desist from the unfair practice and to take appropriate affirmative measures, including but not limited to, actual damages including payment of lost profits not in excess of the amount of monetary damages actually incurred and damages caused by humiliation and embarrassment, payment of attorneys' fees or to take such other action as in the judgment of the office of civil rights enforcement will effectuate the purposes of this chapter, which may include the requirement for a report on the matter of compliance. If the office of civil rights enforcement finds the respondent willfully or knowingly committed any unfair contracting practice, the office of civil rights enforcement may further order the respondent to pay a civil penalty of up to one thousand dollars per violation, which penalty shall be paid to the King County treasury division for deposit in the county general fund.
C. If there is a failure to reach an agreement for the elimination of any unfair contracting practice where the respondent is an executive department, division or office of the county, the office of civil rights enforcement may compel compliance by the executive department, division or office with any settlement agreement agreed to between the complainant and the office of civil rights enforcement.
SECTION 7. Hearing - appeal.
A. A party aggrieved by an order of the office of civil rights enforcement may request in writing within ten days of the service of the notice and order an appeal hearing before the county office of the hearing examiner. The request shall cite the notice and order appealed from and contain a brief statement of the reasons for seeking the appeal hearing.
B. An order issued by the office of civil rights enforcement in accordance with procedures contained in this chapter becomes final ten days after service of the notice and the order unless a written request for hearing is received by the hearing examiner within the ten day period.
C. If the order of the office of civil rights enforcement is appealed, the office of the hearing examiner shall conduct a hearing for the purpose of affirming, denying or modifying the order. There shall be a verbatim record kept of the hearing and the hearing examiner shall have such rule-making and other power necessary for the conduct of the hearing as are specified by K.C.C. 20.24.170. The order of the office of civil rights enforcement shall not be accorded the presumption of correctness. The hearing examiner's decision shall be based upon a preponderance of the evidence. The hearing shall be conducted within a reasonable time after receipt of the request for appeal. Written notice of the time and place of the hearing shall be given at least ten days before the date of the hearing to each affected party and to the office of civil rights enforcement.
D. Each party has the following rights, among others:
1. to call and examine witnesses on any matter relevant to the issues of the complaint;
2. to introduce documentary and physical evidence;
3. to cross-examine opposing witnesses on any matter relevant to the issues of the complaint;
4. to impeach any witness regardless of which party first called the witness to testify;
5. to rebut evidence against the party;
6. to represent himself or herself or to be represented by anyone of the party's choice who is lawfully permitted to do so.
E. Following review of the evidence submitted, the hearing examiner presiding at the hearing shall enter written findings and conclusions and shall affirm or modify the order previously issued if the examiner finds that a violation has occurred. The examiner shall reverse the order if the examiner finds no violation occurred. A copy of the examiner's decision shall be delivered to all affected parties.
NEW SECTION. SECTION 8. Enforcement.
A. If the respondent refuses or fails to comply with an order of the office of civil rights enforcement that has not been appealed under section 7 of this ordinance, the office of civil rights enforcement may enforce the order against the person utilizing civil penalties of K.C.C. Title 23. If a civil penalty is assessed, notwithstanding the monetary amount provided in K.C.C. Title 23, the penalty shall be two hundred dollars per day for each day the respondent refuses or fails to comply with an order of the office of civil rights enforcement.
B. If the office of civil rights enforcement has reasonable cause to believe that a respondent has breached a prefinding or postfinding settlement agreement or has violated an order of the office of civil rights enforcement issued under section 6 of this ordinance, the office of civil rights enforcement shall refer the matter to the prosecuting attorney for the filing of a civil action under subsection C of this section for the enforcement of the agreement.
C. The prosecuting attorney may commence a civil action in King County superior court for appropriate relief with respect to a breach of a prefinding or postfinding settlement agreement or violation of an order of the office of civil rights enforcement issued under section 6 of this ordinance or an order of the hearing examiner issued under section 7 of this ordinance.
NEW SECTION. SECTION 9. Enforcement by private parties.
A. An aggrieved person may commence a civil action in King County superior court not later than one year after the occurrence or the termination of an alleged unfair contracting practice, whichever occurs last, to obtain appropriate relief with respect to the unfair contracting practice.
B. The computation of the one-year period does not include time during which an administrative proceeding under this chapter was pending with respect to a complaint or charge under this chapter based upon the discriminatory contracting practices.
C. An aggrieved person may commence a civil action under this section whether or not a complaint has been filed under section 4 of this ordinance and without regard to the status of any such a complaint, except as provided in subsection D of this section, but if a settlement or conciliation agreement has been reached with the consent of an aggrieved person, an action may not be filed under this subsection by the aggrieved person with respect to the alleged unfair contracting practice that forms the basis for the complaint except for the purpose of enforcing the terms of the agreement.
D. An aggrieved person may not commence a civil action under this section with respect to an alleged unfair contracting practice which forms the basis of a complaint if a hearing on the complaint has been convened by the office of the King County hearing examiner.
E. In a civil action under this section, if the court finds that an unfair contracting practice has occurred or is about to occur, the court may grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in such a practice or ordering such affirmative measures as might be appropriate. The court may also allow reasonable attorneys' fees and costs to the prevailing party.
F. Relief granted under this section does not affect any contract, sale, encumbrance or lease consummated before the granting of the relief and involving a bona fide purchaser, encumbrances or tenant, without actual notice of the filing of a complaint with the office of civil rights enforcement or civil action under this title.
G. Upon timely application, the prosecuting attorney may intervene in the civil action if the prosecuting attorney certifies that the case is of general public importance.
NEW SECTION. SECTION 10. Authorization to implement procedures.
The office of civil rights enforcement: shall receive, investigate and issue findings and orders with respect to charges alleging unfair practices as defined by this chapter, conciliate and settle the charges by agreement and monitor and enforce any agreement or order resulting therefrom or from a subsequent hearing on the charges under this chapter; and has 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 powers and duties and provided by law. The office of civil rights enforcement may implement such forms, administrative processes and operational procedures as are necessary to implement this chapter, but the forms, processes and procedures shall be adopted in compliance with K.C.C. chapter 2.98. The office of civil rights enforcement shall further assist other county agencies and departments upon request in effectuating and promoting the purposes of this chapter.
NEW SECTION. SECTION 11. Requirement to comply.
King County shall include the requirement to comply with this chapter in all contracts, all agreements with recipients of grants and other funds through or from King County and all agreements with organizations which use King County buildings, facilities or property or use property for which King County is responsible for capital improvements.
SECTION 12. Sections 2 through 11 of this ordinance should constitute a new chapter in the King County Code.
SECTION 13. Severability. If any provision of this ordinance or its application to any person or circumstance is held invalid, the remainder of the ordinance or the application of the provision to other persons or circumstances is not affected.
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Seattle Times October 18, 2000