(a) Filing of the complaint.
(1) An aggrieved individual, complainant, may file with the Westerville Clerk of Council a written complaint 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.
(2) Concurrent with the filing of the complaint, the complainant shall provide to the Clerk of Council in writing the complainant's mailing address, telephone number, if any, and email address, if any.
(3) The complaint shall not be accepted by the Clerk of Council if any of the following apply:
A. The complaint is presented to the Clerk of Council more than 180 days following the most recent unlawful discriminatory act alleged in the complaint;
B. No incident location provided in the complaint is within the City of Westerville;
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 division (a)(1) of this section;
E. The complainant fails to concurrently provide a writing that includes the information required in division (a)(2) of this section.
(4) Upon receiving a complaint of an alleged unlawful discriminatory act, the Clerk of Council shall immediately date stamp the complaint and shall mail by certified or registered mail, return receipt requested, certified copies of the complaint to the Commission and the respondent.
(5) Upon receiving a complaint of an alleged unlawful discriminatory act, the Clerk of Council shall immediately deliver a copy of the complaint to the City Manager and the Law Director.
(6) The Clerk of Council shall retain the original date-stamped complaint and shall open and maintain a file on the matter during the pendency of any actions related to the complaint and for so long thereafter as is necessary to comply with the City's Records Retention Schedule.
(b) Commission: contracted authority and initial actions.
(1) The City shall contract with the Commission, and the City Manager is hereby authorized to enter into and perform such contract on behalf of the City upon such terms as the City Manager deems appropriate and are agreeable to the Commission. Based on the terms of the contract, the reasonable costs of using the Commission shall be calculated, and the Hearing Officer may impose such costs on the respondent, if the Hearing Officer conducts a hearing and finds the respondent has or is committing acts or practices of unlawful discrimination, and the Hearing Officer deems the imposition of such costs appropriate.
(2) If the Commission determines the most recent of the unlawful discriminatory acts alleged in the complaint occurred more than 180 days before the date the complaint was filed with the Clerk of Council or that none of the alleged acts occurred within the City of Westerville, the Commission shall have no authority to investigate or take further actions except to return the complaint to the Clerk of Council with written notice to the Clerk of Council and the Law Director that the complaint is outside of the authority granted to the Commission.
(3) Except as otherwise provided in this section, the Commission, acting as an administrative body of the City, shall be authorized to investigate, mediate, and make recommendations.
(4) If the Commission accepts the complaint, it shall follow such rules and procedures as the Commission deems appropriate, and at the conclusion of its process, the Commission shall issue a written recommendation to the Law Director with a copy to the Clerk of Council. The recommendation shall be to either:
A. Dismiss the complaint; or
B. Forward the complaint to a Hearing Officer.
(5) Within thirty days following the Law Director's receipt of the recommendation of the Commission, regardless of the specific 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 on the respondent and the complainant, with a copy to the Clerk of Council. The documents shall be deemed received and properly served upon the respondent and the complainant five days following the mailing thereof. The notice of dismissal may be appealed pursuant to the provisions of R.C. Chapter 2506.
(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.
(2) At the conclusion of the administrative hearing the Hearing Officer shall issue to the parties and the Law Director 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 include the issuance of a notice of dismissal.
(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 period for the respondent's compliance.
(4) The final decision of the Hearing Officer may include the imposition upon the respondent of reasonable costs of the Commission's process. The cost of the Hearing Officer's services shall not be assessed against the respondent. Attorney fees shall not be assessed against the respondent. Damages and other expenses incurred by the complainant or any other party 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 division (c)(5)B. or (c)(5)C. of this section does not apply, a civil penalty in an amount not to exceed one thousand dollars ($1,000);
B. If division (c)(5)C. of this section does not apply and if the respondent has been found by the Hearing Officer 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 Clerk of Council, 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 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 Clerk of Council, 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 R.C. Chapter 2506.
(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 Clerk of Council and the Law Director.
(e) City of Westerville as respondent.
(1) If the Hearing Officer finds a violation occurred, and the respondent is the City of Westerville or one of its boards, commissions, departments, divisions, officials, or employees, the Hearing Officer shall issue to the Westerville Clerk of Council 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 Westerville Clerk of Council, at a reasonable time following receipt of the notice of violation, the Westerville City Council shall, at an open public meeting of City Council, take such actions and impose such remedies as City Council deems appropriate, including delegating such authority to the City Manager.
(Ord. 2019-18. Passed 11-19-19.)