(a) The responsibility for administering this chapter shall be borne by the city manager, or any other individual designated by the city manager.
(b) Any claims filed under this chapter regarding race, color, religion, national origin, sex, familial status, age, or disability shall be delegated and referred to the State Human Rights Commission, including functions, duties and powers with respect to investigating, conciliating, hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business or matter regarding those types of claims.
(c) Administration and enforcement regarding claims filed under this chapter regarding gender identity or sexual orientation shall be as follows:
(1) Any person claiming to be aggrieved by a violation of this chapter may, within one hundred eighty (180) days of the alleged violation or within thirty (30) days of the dismissal of a charge or complaint concerning the same matter by another governmental agency or state or federal court without a final judgment on the merits, whichever occurs last, file a written complaint under oath with the city manager. The city manager may designate an agent to fulfill the duties and procedures outlined herein.
(2) A person who has filed a complaint with the State Human Rights Commission, and whose complaint is pending shall provide written notice to the Human Rights Commission within five (5) business days of the filing of any complaint or charge on his or her behalf with another agency or state or federal court that seeks relief or damages for the same alleged violation(s) arising from the same transaction(s) or occurrence(s) upon which the person seeks relief hereunder. Upon receiving notice of the other charge or complaint, the Human Rights Commission shall have discretion to dismiss the complaint filed hereunder. The failure to provide such notice in a timely manner may result in the immediate dismissal of the complaint filed herein. The complaint shall state as follows:
a. The name and address of the complainant;
b. The name and address (if known) of the alleged violator, or provide facts sufficient to identify such person;
c. An outline of the material facts upon which the complaint is based;
d. The alleged violation;
e. That any conduct of the complainant was for the purpose of obtaining the housing, employment or public accommodation in question and not for the purpose of harassment or entrapment of the person against whom the complaint is made; and
f. That a complaint concerning this same matter has not been filed with another agency or that any complaint concerning this matter filed with another agency has been dismissed by such agency without final judgment on the merits.
(3) The city manager shall furnish a copy of the complaint to the person against whom the complaint is made.
(4) Before conducting a full investigation of the complaint, the city manager may attempt to negotiate a settlement of the dispute between the parties, if the city manager deems that such an attempt is practicable.
(5) If the city manager does not deem it practicable to attempt a pre-investigation settlement or is such settlement attempt is unsuccessful, then the city manager shall conduct an investigation to determine whether there is probable cause to believe the allegations of the complaint. An investigation can include but is not limited to interviews of the parties or requests for written statements and information. Said investigation must be completed within sixty days (60) of receipt of the complaint.
(6) If the city manager determines that there is no probable cause that a discriminatory action occurred, the city manager shall dismiss the complaint. Written notice of the dismissal shall be served upon the complainant by regular U.S. Mail. The notice shall state that the complainant may request a hearing before the Board of Commissioners of the City of Danville, in writing, within fourteen (14) days of the date of the dismissal and shall include a hearing request form with instructions as to how to file that request. If such hearing is held, the Board of Commissioners may affirm the decision of the city manager or determine that probable cause exists and direct the city manager to act in accordance with section 5.5-9(c)(11) and the remaining provisions of this section.
(7) If the city manager determines after an investigation that there is probable cause and a sufficient basis in fact to support the allegation(s) made in the complaint, the city manager shall endeavor to eliminate the alleged violation by a conciliation agreement, signed by all parties and the city manager, wherein the alleged violation is eliminated and the complainant is made whole to the greatest extent practicable.
(8) The city manager shall furnish a copy of such signed conciliation agreement to the complainant and the person charged.
(9) A conciliation agreement need not contain a declaration or finding that violation has in fact occurred, but may provide for dismissal of the complaint with or without prejudice.
(10) The city manager shall have thirty (30) days from the filing of the complaint to attempt to eliminate the alleged violation by conciliation agreement. In the event that either the complainant or the person or entity charged indicates an unwillingness to participate in the conciliation process or in the even that no conciliation process or no conciliation agreement has been reached with the time provided, the city manager shall refer the complaint for an administrative hearing. The city manager may continue attempts to reach a conciliation agreement after referral of the complaint for hearing.
(11) The city manager shall set a date for an administrative hearing and shall notify the complainant and the person or entity charged in writing at least ten (10) calendar days in advance of the hearing date.
(d) Hearings.
(1) A hearing officer shall be appointed by the city manager to preside over the conduct of an administrative hearing and shall regulate the course of the proceedings in a manner that will promote the orderly and prompt conduct of the hearing. The hearing officer shall be an attorney licensed to practice law in the Commonwealth of Kentucky.
(2) To the extent necessary for the full disclosure of all relevant facts and issues, a hearing officer shall afford all parties the opportunity to respond, present documentary or tangible evidence, conduct cross-examination, and submit rebuttal evidence. The hearing officer shall supervise and determine what discovery will be appropriate, including but not limited to interrogatories, requests for production of documents and depositions.
(3) Any party to an administrative hearing may participate in person and/or be represented by counsel.
(4) If a party fails to attend or participate in a hearing, the hearing officer may adjourn the proceedings and issue a default order.
(5) Hearing shall be conducted in accordance with KRS 13B.080 and KRS 13B.090 unless otherwise provided herein. Notwithstanding the foregoing, the hearing officer may receive additional evidence as he or she deems proper. Discovery of materials shall be completed at least fourteen (14) days prior to the hearing. The hearing officer shall receive only relevant and material evidence and all evidence must be presented in the presence of the hearing officer.
(6) Findings of fact shall be based exclusively on the evidence in the record. The strict rules of evidence governing civil proceedings shall not apply; however, the hearing officer will abide by the general principles of evidence in an effort to conduct a rational and reasonable investigation to seek the truth of the matter. All findings of fact shall be based upon a preponderance of the evidence. The order of proof shall be that set forth in the Kentucky Rules of Civil Procedure. The hearing officer shall have the discretion to grant a continuance or continue a hearing in progress on a showing of good cause.
(7) All testimony shall be made under oath or affirmation. Any part of evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party, or if such practice is authorized by statute. Any party shall have the right to inspect the documentary or tangible evidence relating to an administrative hearing either in person or by counsel.
(8) Objections to evidentiary offers may be made by any party and shall be noted in the record.
(9) A hearing officer may take official notice of any matter of which a court of the Commonwealth of Kentucky may take such notice.
(10) The hearing officer may order the removal of a person who exhibits disruptive behavior that interferes with the proceedings.
(11) A hearing officer shall cause all testimony in a hearing to be accurate and completely recorded. A hearing officer may prepare a transcript of a hearing upon request, but the party making the request shall be responsible for the cost thereof.
(12) Within ninety (90) days after the conclusion of the hearing, the hearing officer shall issue a recommended written order that shall include findings of
fact, conclusions of law, and a final disposition of the hearing. A copy of the order shall be sent to each party and the city manager.
(e) Enforcement of orders.
(1) Upon receipt of a recommended written order from the hearing officer finding no violation of this chapter, the city manager shall enter an order dismissing the complaint. Upon receipt of a written order from the hearing officer finding a violation of this chapter, the city manager may issue one (1) or more of the following orders:
a. An order directing the person or entity found to have violated this chapter to cease and desist from the discriminating practice;
b. An order subjecting any person or entity found to have violated this chapter to civil penalties of not less than $100 or more than $500.
(2) The prevailing party may recover from the non-prevailing party the cost of the administrative proceeding and a reasonable attorney's fee and the order shall state same.
(3) Upon entry of the order, the city manager shall send a copy of the order to all parties to the complaint by U.S. mail and shall inform the parties of the right to appeal to the Board of Commissioners along with instructions for doing so.
(f) Appeals.
(1) The order of the city manager, and the findings of fact and conclusions of law upon which it is based, may be appealed to the Board of Commissioners within thirty (30) calendar days of the entry of the order and said appeal shall be in writing and delivered by U.S. Mail to the city clerk. The Board of Commissioners shall review the record established at a special called meeting within thirty (30) days of the written appeal and shall review same de novo and may hear testimony from the parties prior to making a decision to affirm, modify or set aside the order(s) entered by the city manager.
(2) After an order is entered by the Board of Commissioners to affirm, modify or set aside the underlying order(s), an aggrieved party may appeal the decision to the Boyle Circuit Court within thirty (30) calendar days of the entry of order by the Board of Commissioners. The prevailing party may recover from the non-prevailing party court costs and a reasonable attorney's fee.
(g) Enforcement by private action.
(1) The rights granted by this chapter may be enforced by civil action in state or local court of general jurisdiction. A civil action must be commenced within one hundred eighty (180) calendar days after the alleged discriminatory practice occurred. The court shall continue the civil case brought pursuant to this chapter from time to time before bringing it to trail if the court believes that the conciliation efforts of the city manager or State Human Rights Commission are likely to result in satisfactory settlement of the discriminatory action alleged.
(2) The court may grant as relied, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, award to the plaintiff actual damages and not more than $1,000 punitive damages, and in every case shall allow the prevailing party to recover from the non- prevailing party court costs and a reasonable attorney’s fee.
(3) Any sale, encumbrance, or rental consummated prior to the issuance of any court order issued under this chapter, and involving a bona fide purchaser, encumbrance or tenant without actual notice fo the existence of the filing of a compliant or civil action under the provisions of this chapter shall not be affected.
(Ord. No. 1836, § 9, 6-9-14)