(a) Filing of the Complaint.
(1) A Complainant may file with the Code Administrator a written Complaint, in a form prescribed by the Code Administrator, sworn under oath which alleges facts and circumstances, including the location, date(s), and time(s), of an unlawful discriminatory act(s) or practices, that such acts did or are occurring within the City limits, that the discrimination was directed at the Complainant, and which identifies the person who committed or continues to commit the alleged unlawful discriminatory act(s) or practices. At the time of the filing of the Complaint, the Complaint shall indicate whether the Complainant is agreeable to mediation before the Commission as is provided in this chapter.
(2) The Complaint shall not be accepted by the Code Administrator if any of the following apply:
A. The Complaint is presented to the Code Administrator more than 180 days following the date that the Complainant discovered or should have discovered using ordinary diligence, the most recent unlawful discriminatory act alleged in the Complaint; or
B. No incident location provided in the Complaint is within the City of Oberlin;
C. The investigation of the Complaint is required to be conducted pursuant to the terms of a collective bargaining agreement to which the City is a party;
D. The Complaint fails to include all the information required by subsection (a)(1) of this section.
E. Upon receiving a Complaint of an alleged unlawful discriminatory act, the Code Administrator shall immediately date-stamp the Complaint and shall mail by certified or registered mail, return receipt requested, a certified copy of the Complaint to the Respondent together with a notice of the availability of voluntary mediation. A copy of the Complaint shall be delivered to the City Manager and the Law Director.
F. If the Complaint is returned to the Code Administrator marked “refused” or “unclaimed” then the Code Administrator shall mail a copy of the Complaint together with the notice of the availability of voluntary mediation to the Respondent by ordinary U.S. Mail, postage pre-paid.
G. Within thirty (30) days of the date of receipt of the Complaint by the Respondent or from the mailing of the Complaint by ordinary mail, as the case may be, the Respondent may file a written response to the allegations contained in the Complaint. Such response shall be delivered to the Code Administrator who shall immediately transmit a copy to the Complainant. The response shall indicate the acceptance or non-acceptance of mediation before the Commission. The failure to indicate the acceptance or non-acceptance of mediation shall operate as a non-acceptance.
H. The Code Administrator shall retain the original date-stamped Complaint and any response thereto and shall maintain a file on the matter during the pendency of all actions related to the Complaint and for so long thereafter as is necessary to comply with the City’s applicable Records Retention Schedule.
I. If the Complainant and the Respondent have agreed to mediation, the Code Administrator shall forward a copy of the Complaint, any reply and all other papers associated with the Complaint or reply to the Chair of the Commission.
(b) Commission: Initial Actions.
(1) Upon receipt of the Complaint, reply and all other associated papers and except as otherwise provided in this section, the Chair of the Commission shall appoint one of its members who is qualified and otherwise disinterested, to mediate the matters that are the subject of the Complaint and make recommendations.
(2) Mediation shall be conducted in accordance with such rules and procedures as the Commission may have established as approved by Council. At the conclusion of the mediation , and unless the Complainant and Respondent shall have resolved the matter(s) that are the subject of the Complaint, the member who has been appointed to mediate shall issue a written recommendation, together with findings and conclusions supporting the recommendation to the Law Director with a copy to the Code Administrator. The recommendation shall be to either:
A. Dismiss the Complaint; or
B. Forward the Complaint to a Hearing Officer.
(3) Within thirty (30) days following the Law Director’s receipt of the recommendation, the Law Director shall either:
A. Seek to appoint a Hearing Officer who shall conduct an administrative hearing; or,
B. Issue a notice of dismissal by ordinary United States Mail to the Respondent and the Complainant, with a copy to the Code Administrator. Such notice shall state the reason(s) for the dismissal. The Notice of Dismissal shall be deemed received and properly served upon the Respondent and the Complainant five (5) days following the mailing thereof. A dismissal may be appealed pursuant to the provisions of Chapter 2506 of the Ohio Revised Code.
C. If the Complainant and the Respondent have not agreed to mediate before the Commission or if no written response has been received from the Respondent, then the Law Director shall elect to proceed under subsections (b)(3)A. and B. above.
(4) If the Complainant and Respondent shall have resolved the matters that are the subject of the Complaint, the Chair of the Commission shall forward a written notice of such resolution to the Code Administrator and a copy to the Law Director together with any conditions, stipulations, terms or other components of the resolution.
(c) Hearing Officer, Final Decision, Remedies, and Appeal.
(1) If a Hearing Officer is appointed, the Hearing Officer shall have the authority to:
A. Conduct an administrative hearing;
B. Provide to all the parties, witnesses, and the Law Director timely notice of the hearing date, time, and location;
C. Set, change as necessary, and timely communicate to the parties such reasonable procedural rules as the Hearing Officer shall deem appropriate;
D. Issue subpoenas and direct the exchange of discovery;
E. Dismiss the Complaint if the Complainant fails to appear for the Administrative hearing.
(2) At the conclusion of the administrative hearing the Hearing Officer shall issue to the parties, with copies to the Law Director and the Code Administrator, a final written decision to include findings of fact and conclusions of law:
A. If the Hearing Officer finds the Respondent did engage in, or continues to engage in, an unlawful discriminatory act or practice under this chapter, and the Hearing Officer, in the Hearing Officer’s sole discretion, deems it appropriate, the Hearing Officer’s final written decision may include the issuance to the Respondent of orders to cease and desist and the imposition upon the Respondent of such other sanctions as are provided in this Chapter; or
B. If the Hearing Officer, in the Hearing Officer’s sole discretion, deems it appropriate, the Hearing Officer’s final written decision may be a dismissal of the Complaint.
(3) If the final decision of the Hearing Officer includes the issuance to the Respondent of orders to cease and desist the unlawful discriminatory acts or practices, such orders to cease and desist shall specify a time for the Respondent’s compliance.
(4) The final decision of the Hearing Officer may include such other relief that the Hearing Officer deems appropriate that is not inconsistent with the provisions of this chapter. The cost of the Hearing Officer’s services shall not be assessed against the Respondent. Attorney fees, if any, shall not be assessed against the Respondent. Damages and other expenses incurred by the Complainant shall not be assessed against the Respondent.
(5) The final decision of the Hearing Officer may include the imposition upon the Respondent of a civil penalty payable to the City as follows:
A. If subsections (c)(5)B. or C. of this section does not apply, a civil penalty in an amount not to exceed one thousand dollars ($1,000);
B. If subsection (c)(5)C. of this section does not apply and if the Respondent has been found by the Hearing Officer to have been previously determined to have committed one violation of this Chapter during the five-year period immediately preceding the date on which a Complaint was filed with the Code Administrator, a civil penalty in an amount not to exceed two thousand five hundred dollars ($2,500);
C. If the Respondent has been found by the Hearing Officer to have been previously determined to have committed two or more violations of this Chapter during the five-year period immediately preceding the date on which a Complaint was filed with the Code Administrator, a civil penalty in an amount not to exceed five thousand dollars ($5,000).
(6) The final decision of the Hearing Officer may not include any orders for reinstatement of employment, refund of monies paid, other mitigation of damages, or any other orders for corrections or sanctions, except as provided in this section.
(7) The final decision of the Hearing Officer may be appealed pursuant to the provisions of Chapter 2506 of the Ohio Revised Code.
(d) The final decision issued by the Hearing Officer shall be in a writing served by ordinary United States Mail on the Respondent and the Complainant. The documents shall be deemed received and properly served upon the Respondent five days following the mailing thereof. Copies of the final decision shall also be sent to the Code Administrator and the Law Director.
(e) City of Oberlin as Respondent.
(1) If the Hearing Officer finds that a violation occurred, and the Respondent is the City of Oberlin by action of one of its boards, commissions, departments, divisions, officials, or employees, the Hearing Officer shall issue to the Code Administrator a notice of violation, without any orders and without specifying any sanction, and the Hearing Officer shall take no further action.
(2) If the Hearing Officer issues a notice of violation on the Code Administrator, and the Respondent is a board or commission or a Council appointee, at a reasonable time following receipt of the notice of violation, the Oberlin City Council shall take such actions and impose such remedies as it deems appropriate. If the Hearing Officer issues a notice of violation to the Oberlin Code Administrator and the Respondent is a City of Oberlin employee, the respective Council appointee” shall take such actions and impose such remedies as he or she deems appropriate.
(Ord. 20-64AC CMS. Passed 1-4-21.)