Lincoln Journal Star, NE, USA
Undeterred by AG's opinion, City Council will consider
By NANCY HICKS / Lincoln Journal Star | Posted: Friday, May 4, 2012 4:15 pm
The Lincoln City Council will continue with efforts to pass an
expansion of the city's civil rights ordinance to cover gay and
transgender people despite a Nebraska attorney general's opinion that
the council does not have that power.
Mayor Chris Beutler said Attorney General Jon Bruning's opinion has no
binding effect on cities.
And the Lincoln city attorney has a different opinion from the
attorney general, Beutler said at a Friday afternoon news conference.
Attorneys for both Omaha and Lincoln are in agreement that "there are
lots of things about this opinion that are not correct," Beutler said
of the attorney general's opinion released Friday morning.
Bruning said cities cannot broaden their anti-discrimination laws
without asking voters to expand the city charter, or getting the
Legislature to expand the state's civil rights laws.
Now, anti-discrimination protection for gender identity or sexual
orientation is not a part of either the Lincoln city charter or state
The Bruning opinion was released just days before a Lincoln City
Council public hearing on a proposal to add gender identity and sexual
orientation to the classes of people specifically protected against
discrimination in employment, housing and public accommodations. That
hearing will be part of the Monday 3 p.m. council meeting.
The Omaha City Council recently added similar anti-discrimination
protection for gay, lesbian, bisexual and transgender people to its
civil rights ordinance.
The statute used by the attorney general to argue that cities don't
have the authority to go beyond state law actually includes words
allowing cities to pass ordinances that are more comprehensive than
state law, Lincoln City Attorney Rod Confer said at the news
"This is an issue of basic fairness," Beutler said. "No one should
live in fear of losing a job or housing because of sexual orientation
or gender identity.
"Lincoln is the capital city of the state whose motto is 'Equality
before the law.' It's time to make those words ring true."
Opponents of the Omaha and Lincoln proposals say the attorney
general's opinion verifies what they believed all along.
"You just create a very difficult environment in the state if you
start allowing various cities to have new protected classes," said the
Rev. Al Riskowski, executive director of the Nebraska Family Council.
The attorney general feels strongly that state law does not allow city
councils to create new protected classes. But someone may have to take
that to court, he said.
It is indisputable that a vote of the people is required to change
city charter, Riskowski said.
The Bruning opinion came in response to questions by Omaha Sen. Beau
McCoy, who introduced legislation last year that would have prohibited
cities and counties from creating protected classes beyond those found
in state law.
That bill did not get out of the Judiciary Committee and died when the
session ended last month.
This is not a new issue. In previous years, Lincoln and Omaha have
added other protected classes to city laws that are broader than what
is in state law or the city charter, Beutler pointed out.
Lincoln already offers more protection in the areas of familial
status, age, disability and national origin than is provided in state
law, Confer said. And none of these categories are part of the city
charter, he said.
The Bruning opinion released Friday contradicts a 1981 attorney
general's opinion that concluded cities could expand their civil
rights ordinances beyond in state law.
But that opinion left some room for doubt. It suggested an alternative
interpretation also is feasible and recommended changing state law to
eliminate any doubt.
The most recent opinion refers to the 1981 opinion but comes down on
the other side.
"While we continue to believe as we did in 1981 that the legislative
history does not provide an entirely clear answer ... it also seems to
us that other aspects of the relevant statutes, which we did not
discuss in 1981, indicate that the authority of political subdivisions
to legislate ... is limited to the civil rights enumerated in state
statute, absent changes in a home rule charter."
The Lincoln City Council expects to vote on the expanded protected
classes at its May 14 meeting.
"We believe this opinion is in error," said Councilman Carl Eskridge,
who sponsored the Lincoln amendment and has said he has support from a
majority of the council. "We believe we are on the right ground, the
high ground. So we will move on."
A matter of opinion
There is a history of contradictory local and state opinions on the
ability of local communities to add new protected classes to local
* In 1981, Nebraska Attorney General Paul Douglas concluded in an
opinion that a city could expand its civil rights ordinance beyond
what the protected classes found in state statute. However Douglas
said a contrary interpretation was feasible and suggested that to be
completely certain, there should be clarifying legislation.
* In 1982, Lincoln City Attorney Bill Austin said the city must expand
the city charter, with approval from city voters, in order to add
protected classes not found in state law.
* Current Lincoln City Attorney Rod Confer has told the mayor and city
council they can expand anti-discrimination protection beyond state
law by a City Council vote, with no need for a city-wide vote. The
city has not released his opinion to the public.
* Friday, Nebraska Attorney General Jon Brun
Full Story <http://journalstar.com/a-matter-of-opinion/article_eae0906c-ad9f-5f6a...>
PDF: Read the Attorney General's opinion
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