ESTABLISHMENT OF ANTI-DISCRIMINATION PROGRAMS BY CITIES AND TOWNS

CITIES AND TOWNS ‑- DISCRIMINATION ‑- REMEDIES ‑- ESTABLISHMENT OF ANTI-DISCRIMINATION PROGRAMS BY CITIES AND TOWNS 

(1) Section 5, chapter 259, Laws of 1981, does not withdraw any of the preexisting authority of cities or towns to enact ordinances to eliminate discrimination or create city human rights agencies.

(2) To the extent that § 5, chapter 259, Laws of 1981, does grant additional powers, however, it applies only to first-class cities with a population of over 125,000 inhabitants. 

(3) The cities thus specified in § 5, chapter 259, supra, are authorized to provide administrative remedies consistent with those in the state law against discrimination, RCW 49.60.250, 49.60.260 and 49.60.270.   

(4) The word "prescribed" in § 5, chapter 259, Laws of 1981, should be interpreted as "proscribed." 

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                                                                 October 5, 1981 

Mr. Avery Garrett, Chairman
Municipal Research Council
4719 Brooklyn Avenue N.E.
Seattle, Washington 98105

Cite as:  AGO 1981 No. 14                                                                                                                

 Dear Sir:

           By letter previously acknowledged you requested our opinion on several questions concerning the application of § 5, chapter 259, Laws of 1981 (SSB 3704).  We paraphrase your questions as follows:

             (1) Does § 5, chapter 259, Laws of 1981, withdraw any of the preexisting authority of cities or towns to enact ordinances to eliminate discrimination or create city human rights agencies?

             (2) Which cities possess the powers conferred by this section?

              [[Orig. Op. Page 2]]

(3) What are the "administrative remedies" that the cities to which § 5, chapter 259, supra, applies are empowered to provide?

             (4) Should the word "prescribed" in the statute be interpreted as "proscribed"?

             We answer question (1) in the negative, question (4) in the affirmative, and the remaining questions as set forth in our analysis.

                                                                      ANALYSIS

             Chapter 259, Laws of 1981 (SSB 3704) amends the Washington State Law Against Discrimination, chapter 49.60 RCW, by making several changes in the way that complaints of discrimination under that law are processed.  In addition, however, the act contains a provision, § 5, which was added by floor amendment and which reads, in its entirety, as follows:

             "NEW SECTION.  Sec. 5.  There is added to chapter 49.60 RCW a new section to read as follows:

             "Any city classified as a first class city under RCW 35.01.010 with over one hundred twenty five thousand population may enact ordinances consistent with this chapter to provide administrative remedies for any form of discrimination prescribed by this chapter:  PROVIDED,  That the imposition of such administrative remedies shall be subject to judicial review."

             We think that this enactment is best understood by examining it in the light of its legal context and its history.

             The power to prohibit discrimination because of race, sex, etc., is part of the "police power"‑-the general power of a legislative authority to adopt laws for the peace, good order, and security of the people.  Thus, in enacting the Washington State Law Against Discrimination back in 1949, our legislature said that it did so in

             ". . . exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, . . ."1/

              [[Orig. Op. Page 3]]

            From this it follows that cities, which also possess full police power,2/ likewise may enact ordinances forbidding discrimination.  For example, the Washington Court of Appeals has recently described the Seattle Fair Employment Practices Ordinance as

             ". . . a valid exercise of the City's police power pursuant to article 11, section 11 of the Washington State Constitution."3/

              The power to prohibit discrimination also implies the power to employ persons to carry out the law or ordinance.  Such employees may be organized into a department, commission or other agency charged with enforcement of the ordinance.  In other words, cities, like the state itself, have the power to create their own human rights agencies‑-at least in the absence of a preemptive state law to the contrary.

             The foregoing principles are well established and have been for many years.4/   What has not been clear, however, is the  [[Orig. Op. Page 4]] extent to which a city may create remedies for the discrimination that it has prohibited.  While there is no doubt that the cities may provide criminal sanctions, there is and has long been an uncertainty as to whether they have the power to create civil remedies for discrimination like those authorized in the state Law Against Discrimination, such as injunctive‑type orders and orders for the discriminator to pay back pay to the person discriminated against.  There has also been a question about how an injunctive order or an order to pay back wages can be enforced if it is not complied with, as illustrated by a recent City of Tacoma case.

             In 1978 a hearing tribunal of the Tacoma Human Relations Commission, acting under authority of a city ordinance, found after hearing that an employer had fired an employee in part because she would not submit to sexual harassment.  The tribunal found this to be a violation of Tacoma's human rights ordinance and it ordered the employer to pay the former employee $3,289 back pay.  Keller v. Stanley Shoes, Tacoma Human Relations Commission No. 304.  The employer, however, did not comply with the order, questioning its authority, and the city then filed an action in Pierce County Superior Court for its enforcement.  But, in June of 1980, the Court dismissed the case on the following two grounds:

             (1) The city human rights ordinance ". . . is unenforceable in light of the Supreme Court of the State of Washington decision in the case of Spokane vs. J/R Distributors, 90 WA 2d 722, 585 P.2d 784 [1978]. . . . "5/

             (2) "The City of Tacoma, even though it is a Charter City, is without authority to enact an ordinance which would provide civil penalties."6/

              [[Orig. Op. Page 5]]

            It was against this background that the legislature entered the picture.  Early in the 1981 session, House Bill 100 was filed for the purpose of adding the following new section to the state Law Against Discrimination:

             "Any city classified as a first class city under RCW 35.01.010 may enact ordinances consistent with this chapter to provide administrative remedies for any form of discrimination proscribed by this chapter."

             This proposal was not enacted but then, when Substitute Senate Bill 3704 came before the House of Representatives, its sponsor7/ moved that § 5, quoted above (clearly a revised version of HB 100), be added as an amendment.  The amendment was adopted and the SSB 3704 became law.

             With this orientation in mind we may now address your questions regarding the application of this provision.

             Question (1):

             First, you have asked:

             Does § 5 . . . withdraw any of the preexisting authority of cities or towns, generally, to enact ordinances to eliminate discrimination or create city human rights agencies?

             Our answer to this question is no.

             First, nothing in the language of the statute indicates any such intention.  Rather, it authorizes certain cities to

             ". . . enact ordinances consistent with this chapter to provide administrativeremedies for any form of discrimination prescribed [sic] by this chapter: . . ."  (Emphasis supplied.)

 The statute thus does not address the power of cities to prohibit discrimination or create human rights agencies but, instead, it addresses only their power to provide remedies.  And even in that area, it is worded in terms of a grant, not a limitation, of authority.

              [[Orig. Op. Page 6]]

            Second, legislative history eliminates any doubt as to the purpose of the provision.  According to the House Journal for April 20, 1981, the following point of inquiry was made‑-just after the vote adopting the subject amendment and before the vote on final passage of SSB 3704 as amended:

             "Mr. Salatino:  Representative Wang, is the intent of section 5 of this bill the same as the intent expressed earlier on the floor regarding House Bill No. 100?

             "Mr. Wang:  Yes, Representative Salatino, it is.  My previous remarks regarding House Bill 100 would apply to the new section 5, which was adopted by the amendment.  It is not preemptive in nature, it's permissive."

             In turn, Mr. Wang's previous remarks regarding HB 100 are recorded in the House Journal for March 30, 1981, as follows:

             "Mr. Padden:  'Representative Wang, I'm interested in the legislative intent behind this bill.  Is it your intent that a first class city, such as Tacoma, would be preempted under this bill from enacting local variations of anti discrimination laws?  For example, the Tacoma ordinance speaks specifically to advertising, a subject which is not addressed under state law?'

             "Mr. Wang:  'No, Representative Padden, that is not the intent.  House Bill No. 100 merely reauthorizes what has been existing law for a number of years.  It is intended to be permissive rather than preemptive with local ordinances on discrimination. . . .'"

             In addition, when SSB 3704 was returned to the Senate for consideration of the Wang amendment, there was extended colloquy in the form of points of inquiry on the Senate floor.  As recorded in the Senate Journal for April 26, 1981, that colloquy concluded as follows:

             "Senator Shinpoch:  '. . .

             "'Senator Talmadge, in order to establish legislative intent, is it the intent that a city would be preempted under this bill from enacting local variance to antidiscrimination laws?  For example,  [[Orig. Op. Page 7]] the Tacoma ordinance speaks specifically to advertising, a subject not addressed in state law; and Seattle uses hearing . . . to hear most cases, which is also different.  Some jurisdictions like Seattle and Montlake Terrace prohibit housing discrimination against families with children; and the state law does not do that.  Could you respond?'

             "Senator Talmadge:  'No, that is not the intent of the Wang amendment.  Representative Wang worked on that amendment over in the House.  I think it is very similar to a bill Senator Wojahn worked on over here in the Senate.

             "'Now that bill authorized what has been existing in law already for years.  It is intended to be permissive rather than preemptive toward local ordinances on discrimination [sic] and this helps clear up questions that arose in Tacoma; but there don't appear to be any other questions in any other jurisdictions that use local antidiscrimination commissions.'"

             In short, the purpose of the legislature was merely to remove the cloud cast by the Pierce County Court decision, supra, on existing remedial practices of the City of Tacoma.8/   The legislature did not intend to eliminate any preexisting power to order back pay awards or in any way to limit the existing power of cities to prohibit discrimination and create human rights agencies.

             Question (2):

             Next you have asked:

             Which cities possess the power conferred by this section?

             The wording of the statute, once again, is "[a]ny city classified as a first class city under RCW 35.01.010 with over one hundred twenty five thousand population . . ."  We understand your question to be whether this grant of power redounds by operation of law to other cities.  For example, the Optional Municipal Code says:

              [[Orig. Op. Page 8]]

            ". . .  The legislative body of each code city shall have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law. . . . "9/

              It is noteworthy that the original proposal, HB 100 (quoted at page 5), was worded to apply to all first-class cities.  And, if the law had passed in that form, we believe that the power granted would have automatically extended to code cities under this last-quoted language.  But it was not so enacted.  Instead, an over-125,000 population limitation was added when the proposal was placed before the House as an amendment to SSB 3704.  This indicates an intention to limit the power granted by this law to first-class cities of over 125,000 population.  We therefore must conclude that the legislature did not intend for the powers grantedby this law to extend to any other cities.

             This conclusion is also supported by another point of legislative history.  Specifically, in the House Journal for April 20, 1981, during debate on whether to adopt the Wang amendment, we find the following:

             "Mr. Sanders:  'Representative Wang, why did you limit this amendment to first class cities over 125,000?'

             "Mr. Wang:  'There are only two local human rights commissions which have authority presently, and that's in Seattle and Tacoma.  The language was suggested by Senator Pullen.  It really doesn't perfect anything because they are the only two anyway.'

             "Mr. Sanders:  'Isn't there a possibility that other cities in the future will have a human rights commission?'

             "Mr. Wang:  'It is possible, and I would think it could be corrected at that time.  There really doesn't seem to be a problem with it at this time.'"

             Again, however, we emphasize that § 5, as enacted, does not withdraw from cities of any class whatever powers they  [[Orig. Op. Page 9]] already have to provide remedies for discrimination.  All we here say is that the only beneficiaries of this particular bill are first-class cities with population of over 125,000.  Other cities claiming the right to provide administrative remedies for discrimination must rely on other authority.

             Question (3):

             Your next question asks:

             What are the "administrative remedies" that the cities to which it applies are empowered to provide?

             The statute says that those cities,

             ". . . may enact ordinances consistent with this chapter to provide administrative remedies for any form of discrimination prescribed by this chapter:  PROVIDED,  That the imposition of such administrative remedies shall be subject to judicial review."

             We believe that the purpose of the legislature was to confirm or grant to the large cities therein referred to10/ the power to provide administrative remedies like those it has provided in the law against discrimination for violations of the state law.

             First, the ordinances of those cities on administrative remedies must be "consistent with this chapter."  The remedy provisions of chapter 49.60 RCW, the law against discrimination, are in RCW 49.60.250, 49.60.260 and 49.60.270.  RCW 49.60.250, as also amended by the same 1981 law,11/ authorizes an administrative hearing before an administrative law judge, and identifies the remedies that the administrative law judge may order when prohibited discrimination is proven.  RCW 49.60.260 provides for enforcement by the superior court of administrative orders that are not complied with.  And RCW 49.60.270 provides for an appeal to the superior court by any "respondent or complainant aggrieved by a final order of an administrative law judge."  Such an appeal is to proceed in the same manner as an enforcement proceeding  [[Orig. Op. Page 10]] under RCW 49.60.260, and the superior court is directed to enter an enforcement order if the order of the administrative law judge is affirmed.

             Next, ordinances that rely on § 5 for authority must be limited in their application to ". . . any form of discrimination prescribed [sic‑-proscribed12/]  by this chapter . . ."  On the other hand, for discrimination proscribed by city ordinance but not proscribed by the state law against discrimination, the cities are left to whatever enforcement procedures are authorized by law other than § 5, chapter 259, Laws of 1981.  And thus, for such discrimination, even the large cities are in the same legal posture as first-class cities of less than 125,000 population and Optional Municipal Code cities.

            Finally, § 5 specifies that administrative remedies imposed under its authority are subject to judicial review.  In context, this must mean judicial review consistent with that provided by the state law:  appeal to the superior court with the right of further appeal to the appellate courts.  RCW 49.60.270, 49.60.260.

             Notably, however, this statutory statement on judicial review raises the further question on whether any significance should be attached to the absence of a statement on judicial enforcement of administrative orders not complied with.  We believe that administrative orders issued pursuant to an ordinance authorized by § 5 are enforceable in superior court, if the ordinance chooses to adopt a procedure consistent with RCW 49.60.260.  Our reasons for this conclusion are as follows:

             (1) Section 5 would accomplish nothing if the administrative orders are not enforceable in court.  The cities would be exactly where Tacoma is now under the Macaluso superior court judgment (see above, page 4).  But the intent of the legislature was to remove the uncertainty left by theMacaluso judgment.

             (2) Under the state law, enforcement of administrative orders and appeal from administrative orders are inseparably intertwined.  See RCW 49.60.260 and 49.60.270.  The legislature's reference to appeal must therefore include enforcement.  In this respect, the Washington Supreme Court has said:

           ". . . [T]he object of the proceeding under our law against discrimination is to obtain a final,  [[Orig. Op. Page 11]] appealable order on the merits relating to enforcement ordersentered by the superior court. . . ."13/   This is the administrative remedy that the authorized ordinances are to be consistent with.

             We therefore conclude, in answer to your third question, that the cities specified in § 5, chapter 259,supra, are empowered to provide administrative remedies consistent with those in the state law against discrimination, RCW 49.60.250, 49.60.260 and 49.60.270.

             Question (4):

             Finally you have asked:

             Should the word "prescribed" in the section be interpreted as "proscribed"?

             Section 5 authorizes ordinances ". . . to provide administrative remedies for any form of discrimination prescribed by this chapter: . . ."  (Emphasis added.)

             To proscribe is to prohibit; to prescribe is to require.  It is unusual for a word to reverse in meaning when one of its letters is changed.  It is even more unusual for this to occur in a statute as a result of action by our state's usually infallible legislative staff.

             In HB 100 the word was "proscribed."  In the written text of Representative Wang's amendment adding § 5 to SSB 3704 the word was "proscribed."  In the enrolled bill the word is "prescribed."  There is no record of this having been done by amendment.  It can only be a clerical error.

             Fortunately, the error is not significant.  "This chapter" (chapter 49.60 RCW) only proscribes discrimination; it does not prescribe any.  This remains true no matter what word is used to make reference to its coverage.  The purpose of the legislature is clear:  To confine the remedies authorized in § 5 to the forms of discrimination covered by the state law.

            In context, the word can only be "proscribed," no matter how it is spelled.  We therefore treat it the same as if the  [[Orig. Op. Page 12]] exhausted legislative staff in the closing days of the 1981 session had misspelled the word in some other way, and had not given the world a classic malapropism.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General