Correction: Fayetteville residents can vote for or against the repeal of the anti-discrimination ordinance from 8 a.m. to 4:30 p.m. Tuesday to Friday and on Dec. 8. This story incorrectly stated the starting time to vote.
The fate of the first municipal law in the state to prohibit discrimination based on gender identification and sexual orientation will soon be in the hands of Fayetteville voters.
The Fayetteville City Council passed the anti-discrimination law -- known as Ordinance 5703 Chapter 119 -- during the wee hours of Aug. 20 after a marathon meeting. In doing so, the city became the first in Arkansas to adopt an ordinance of its kind and joined nearly 200 other cities and counties nationwide with similar laws.
But the fight -- for and against the ordinance -- didn't stop there.
Repeal 119, a local group against the ordinance, circulated petitions in hopes of setting an election to remove the law. Once City Clerk Sondra Smith certified that the group gathered enough signatures -- 15 percent of the city's registered voters -- those supporting the ordinance challenged the sufficiency of the petitions. The matter went to circuit court, but a judge allowed the petition to be placed on a special election ballot.
Fayetteville residents can vote on the matter from 8:30 a.m. to 4:30 p.m. Tuesday to Friday, along with Dec. 8, at the Washington County Courthouse, 280 N. College St. The special election day is Dec. 9.
A vote for the matter would repeal the ordinance. A vote against it would keep the ordinance in place.
State and federal laws prohibit the hiring, firing and eviction of people on the basis of age, sex, national origin, race, religion or disability. Fayetteville's ordinance sought to add protections on the basis of gender identification and sexual orientation that aren't covered in state and federal laws.
The Human Rights Campaign, a Washington-based civil-rights group, helped to draft the ordinance. The group plans to spend $8.5 million during the next three years in Arkansas, Alabama and Mississippi to advocate for "lesbian, gay, bisexual and transsexual equality," the group has said.
The Fayetteville law -- which applies to the city, its employees and contractors who do business with the city -- would include protection from discrimination based on ethnicity, familial status, marital status, socioeconomic background and veteran status. The law won't apply to federal, state and county officials, along with public educational institutions within the city.
It also would exclude religious or denominational institutions, except to prohibit discrimination against employees who perform no religious duties. The Fayetteville council also created an exemption for "sincerely held" religious beliefs. Under that exemption, for example, those intimately involved in a wedding, such as a photographer or singer, could refuse to provide services to a gay couple. But those in the periphery -- a baker or florist -- could not.
After the election was set, Repeal 119 and Keep Fayetteville Fair, a group backing the law, went to work. Using social media, signs and canvassers, the groups urged residents to vote.
Other entities have also entered the ring. The Fayetteville Chamber of Commerce has openly announced its opposition to the ordinance, drawing criticism from Mayor Lioneld Jordan and University of Arkansas at Fayetteville Chancellor G. David Gearhart.
The chamber takes public positions on government policies when the policies are "detrimental to the community because it is legally incomplete, vague or deficient in defining conduct to be regulated as legal or illegal," the chamber's board Chairman Bill Bradley said at a news conference, according to a Nov. 10 memorandum from chamber President Steve Clark to the board.
"In that light, our Board unanimously adopted a resolution calling for the repeal of Ordinance 5703 Chapter 119," Bradley said. "While some may regrettably and erroneously choose to characterize our effort as something it is not, I can assure you that our membership abhors discrimination of every kind and support equal treatment for all. The exclusive focus of our informational campaign is that this law is seriously flawed."
The memo goes on to say that the chamber's political action committee interviewed 11 of 12 candidates going for a city council seat and went on to endorse five candidates. Of those endorsements, four had voted for Chapter 119 or said they would have voted for it, according to the memo.
Clark pointed to the negative impacts of the ordinance, which he said included "vague and ambiguous provisions" that had no weight in court, on the chamber and prospective businesses.
"These legal questions leave existing and new businesses without guidance regarding how they should train their employees to comply with the law and/or modify any of their policies to comply," he said. "On August 25th, our Chamber Board met and learned that three businesses had contacted the Chamber to advise they would not start a business in Fayetteville because of the uncertainty surrounding Ordinance 5703 Chapter 119."
Of the chamber's 1,175 members, seven have resigned, he said, adding that he knew of several University of Arkansas professors who were trying to persuade administrators to withdraw its membership.
In a Nov. 10 letter to Clark and Bradley, Gearhart asked the chamber board to rescind its position.
Gearhart, an ex-officio chamber board member, said neither he nor other ex-officio members were asked to give their opinions before the board.
"The failure to include all ex-officio members in discussion contributes to the perception that the board operated under a veil of secrecy and was opposed to any divergent views," Gearhart wrote. "Such a perception undermines the ability of the board to demonstrate that it consistently functions within the best traditions of our city which embraces openness and policy."
Jordan followed suit with his own letter to the chamber, saying he was "certainly disappointed" in the announcement to work for the repeal of the ordinance.
"Had I been notified of the meeting, I would have attended and discussed the reasons why I think a non-discrimination policy enhances our efforts at economic development in Fayetteville," the mayor wrote. "I was also taken aback by the announcement that this was a unanimous decision. Since you list me as an ex-officio member on your website, many citizens might infer that I supported this position. I do not."
Under the ordinance, Jordan has appointed a civil-rights administrator, who will receive, investigate and resolve complaints of discrimination. Violating the ordinance carries a fine of $500.
Jordan has named City Attorney Kit Williams as the administrator. Williams will serve in that position for the first year the law is in effect.
Williams has written a legal memo after Clark's to dispel some inaccuracies. In Williams' memo, the city attorney pointed to several definitions in the ordinance that Clark listed as ambiguous.
"It is obvious that if any ambiguities in the Civil Rights Administration Ordinance exist which have not been adequately addressed in my memo of September 4, 2014 or this memo, all such ambiguities will be decided in favor of the business or alleged discriminator," Williams wrote. "If there could be a real and fair question whether the Civil Rights Administration Ordinance applied to a person's or business's action, the ordinance would not be able to be applied."
As city attorney and as the civil-rights administrator, Williams said he has the authority to interpret the ordinance and that his interpretation, as ruled by Arkansas Supreme Court justices, has "considerable weight."
For Keep Fayetteville Fair campaign manager Anne-Garland Berry, supporters of the ordinance seem to be the majority.
"This is the 21st century in 2014," she said. "We've seen no problems that are directly related to anti-discrimination ordinances."
She pointed to several local businesses that backed the measure. A majority of Fortune 500 companies have nondiscrimination policies in place already, including Wal-Mart, she added.
"It's important to promote a fair, inclusive Fayetteville where everyone can thrive," Berry said. "That's very much a very important piece of continuing to attract top talent here in Northwest Arkansas."
For Repeal 119 -- the group seeking to overturn the ordinance -- the chamber's announcement was encouraging, said Wendy Campbell, the group's secretary.
"It does cause problems that we don't want in our city," she said. "I think other people are cluing in and starting to read it, and it's not exactly what we need."
The group is concerned the ordinance could essentially quash a business. If a boss fired an employee who happened to be gay, the employee could come back and make a discrimination complaint, Campbell said, adding that it would prompt a full investigation. The attorney fees alone could hurt a business, she said.
"It's too extreme," she said. "There needs to be a better solution for that. It doesn't matter whether you're a Christian, Muslim, Jew, gay or black -- you should be able to have a decent recourse if you're hurt in some way."
The group also called for the repeal of the ordinance because of family safety in locker rooms and bathrooms and because the law would redefine some entities, Campbell said. For example, the law would affect a church's hiring decisions for a secular position, she said.
"It's not a matter of hating other people," Campbell said. "It's a matter of conscience. It's a matter of this is inappropriate."
The ordinance, she said, puts into place a legal framework for nonparticipation.
"If you don't comply, then you're labeled something that is absolutely horrific," she said. "You're accused or charged with being a bigot and prejudiced simply because you didn't want to participate in something. That is so absurd."
Metro on 11/28/2014