News from Patrick Flynn

If you’re amongst the few who pay attention to some of the rants against Anchorage’s recent amendment to the equal rights code you might have heard that some of those ranters are now up in arms about their efforts to promulgate a referendum to repeal the changes.  Their charge seems to be that they are not being treated fairly by the municipal attorney’s & clerk’s office and they point to the recent labor law referendum as evidence. Bad example.

First off, in their diatribes, referendum supporters claim that their title language is as straightforward as the referendum that ultimately repealed AO 2013-37 (S-2). They’re wrong. Read carefully and see if you can see the differences:

• Shall AO No. 2013-37 (S-2) (As amended), an ordinance amending Anchorage Municipal Code chapter 3.70, Employee Relations, remain law?
• Shall AO No. 2015-96 (S-1) (as amended), an ordinance adding sexual orientation and gender identity to Title 5 of the Anchorage Municipal Code, remain law?

Note that the first makes no mention of what code changes were made – supporters of that referendum took on the responsibility of educating voters as to the content of the ordinance and requesting a no vote. The second, however, does discuss the changes and, moreover, does so incompletely. Specifically, it ignores part of the title and the language of the ordinance that allows parties before the Equal Rights Commission to be represented by counsel throughout the process.

That section was intentionally inserted by the original author, Bill Evans, who practices labor law (generally on behalf of employers). As a manager I’ve dealt with these sorts of issues and saw the wisdom of the approach so as we worked on various drafts it remained intact. That’s good news for employers, but completely overlooked in the referendum sponsors’ application.

What’s more interesting about the referendum sponsors’ complaints is the complete lack of recognition that the municipal attorney’s office did not reject their application; instead it noted flaws and suggested remedies. The labor ordinance referendum sponsors were offered no such advice; it was flatly rejected by the previous municipal attorney on grounds that the matter was “administrative” and therefore not subject to the referendum process. The labor referendum sponsors therefore had to take the matter to the Superior Court and won, thus overturning the then-municipal attorney’s decision.

So, if you’re sponsoring a referendum, which would you prefer – a flat rejection or help getting the language right? Now I can see why referendum sponsors might not like the municipal attorney’s current suggestion:

Shall WO 2015-96(S-1)(as amended) which amended the Equal Rights Title of the Anchorage Municipal Code (Title 5) to prohibit discrimination within the Municipality on the bases of sexual orientation or gender identity in the sale, rental or use real property, financing, employment, places of public accommodations, educational institutions, and practices of the Municipality; to codify certain religious and other exemptions; and to expand the lawyer’s role in fact-finding conferences before the Anchorage Equal Rights Commission, be repealed?

Long titles can get confusing to those who don’t read them regularly and, perhaps, the question might be better framed if “be repealed” were instead “remain law?” So, were the referendum sponsors to seek my counsel (highly unlikely) I’d suggest they sit down with the municipal attorney’s staff and suggest the language be vastly simplified without the sponsors’ original editorial content; something like, “Shall AO No. 2015-96 (S-1) (as amended), amending Title 5 of the Anchorage Municipal Code, Equal Rights, remain law?” or simply ask that final clause be amended as suggested above.

Who knows, maybe they’ll actually do that. Or maybe they’ll just keep playing the martyr card.

Regards,

Patrick