At the weekly meeting of the Little Rock Board of Directors, the board discussed next week's vote on an ordinance that would protect LGBT city workers
from discrimination and require contractors with the city to abide by non-discrimination rules that include protections against discrimination based on sexual orientation and gender identity.
Asked about a potential conflict with the state's Act 137, the recently passed law which forbids municipalities from extending protections to gays and lesbians, city attorney Tom Carpenter
told the board he hadn't considered the state law because he believes a federal supremacy argument will prevail.
City Director Bruce Moore
started the discussion of the non-discrimination ordinance by pointing out that the city's written personnel policy already protects against discrimination based on sexual orientation and gender identity. City contracts currently do not require contractors to extend those same protections. Moore said that the new ordinance, if passed, will codify what is already in practice while bringing the city's contracts in line with the city's personnel policy.
Director Joan Adcock
asked Moore and Carpenter whether the ordinance would require contractors to not discriminate, or simply suggest that they be non-discriminatory. She said that if the ordinance required business owners to follow city rules against discrimination, she could not vote for it.
"Is this saying that we suggest that they do this, or that they have to do this?" Adcock said. "Because I have a problem if we sit up here and say for any businessman, they have to do this or that... If we come to requiring or saying they shall, then I cannot support this."
Moore replied that the signing of a contract is voluntary. "If they choose not to sign the contract, that's their call."
"Basically all I see this ordinance as saying is: You're not going to violate federal law," Carpenter said. "Federal law says you won't do these things, so we're not going to contract with you if you do these things. If we contract with you and find out you are doing these things, we're going to cancel the contract." Carpenter later noted that any business with more than eight employees is already required to follow federal law.
Adcock claimed that Carpenter had, in previous board meetings, said that the city couldn't force contractors to change their policies in order to contract with the city. Adcock said that Carpenter had once told Director Erma Hendrix that the city couldn't require contractors to reside within the city in order to do business with the city — a claim which Carpenter denied — and said that Carpenter had also told Director Ken Richardson that it would be unlawful for the city to require contractors to hire disadvantaged workers.
Carpenter explained that in Richardson's case, he'd said the city couldn't stipulate that a contractor must hire a certain percentage of their workforce from a pool of disadvantaged workers.
"You can't say that we're going to hire x-number of this or x-number of that," Carpenter said, "That's when you start getting into equal protection problems."
Richardson later said his ordinance was meant only to give incentives for hiring, not as a mandate to force contractors to hire disadvantaged workers.
Director Gene Fortson said that he would support the ordinance when it comes to a vote. "What we're doing is putting into law what is now practice," Fortson said."I think it's progress. I think a lot of people have worked hard to get there. It's codifying something that, as I said, has been a business practice by the city for a long time."
Director Dean Kumpuris said he looks forward to voting for the ordinance next Tuesday. "There's two reasons that we need to look at this and just move it on without much more discussion," Kumpuris said. "One, it's the right thing to do. That's always the most important thing for me. Secondly, in the business climate we live in today, if you ask Jay (Chesshir, president of the Little Rock Chamber of Commerce) and the people at the Chamber, 'Have some of the things that have happened in our state in the legislature hurt our business climate?' you'd have to say it has not made us look like a great place to come work and be. What this is really saying is, 'Central Arkansas is open for everybody to do business.' " City Director Doris Wright also said she would support the ordinance, saying she believed what it calls for was already city policy.
Director B.J. Wyrick asked Carpenter a series of questions about whether the ordinance would conflict with the state's Act 137,
spawned by SB 202. If the ordinance is passed, Wyrick noted, the city is effectively telling every contractor to abide by the city's non-discrimination rules or they won't get a contract.
Wyrick asked Carpenter what would happen to the ordinance in July, when Act 137 goes into effect, to which Carpenter replied: "I don't think it does anything. I think the federal constitution preempts state law." Wyrick asked whether the ordinance was being passed "so the city of LR can challenge what the state has done?" Carpenter said that he believes it's being passed because the authors of the ordinance believe that "what we're doing is what we want to do."
Wyrick then asked if the city would be setting itself up for lawsuits if the ordinance was passed.
"Lawsuits are filed because somebody has the money to file them," Carpenter said. "If a lawsuit is filed, my defense is going to be: federal law controls." Carpenter noted that several years ago, the Arkansas state legislature passed a law making it legal for state authorities to seize the Social Security benefits of those in prison. "I went to the U.S. Supreme Court," Carpenter said, "and the U.S. Supreme Court unanimously ruled in two weeks that that just wasn't the law — that the federal Constitution prevails. I feel pretty confident going with the supremacy clause argument."
In the hallway after the agenda meeting was adjourned, protection ordinance author Kathy Webb said that she expects a large and vocal turnout in support of the ordinance next Tuesday. She said that even with Director Ken Richardson — a supporter of the ordinance — out of town that day, she believes she has the votes for passage.
"Based on the feedback I've gotten from individuals who have contacted their directors, I do," she said. "It's a long time between now and next Tuesday, and I know that folks who are supportive will be working very, very hard."