The city council voted, the Chamber of Commerce voted and now the people of Fayetteville will get their chance.
On Dec. 9, Fayetteville voters will decide the fate of Ordinance 5703, which the council passed by a 6-2 vote in the early-morning hours of Aug. 20. The ordinance — commonly known as Chapter 119 because of its designated chapter in the city’s code — would prohibit discrimination in the workplace or in housing based on veteran status, sexual orientation, gender identity and socioeconomic background.
Supporters of the ordinance said it was a great step for Fayetteville to become the first Arkansas city to ban such discrimination. Opponents, who successfully organized a petition to put the ordinance to a recall vote in a special election, said the ordinance was too vague, poorly worded and would hamper business operations.
As one would expect, opinions differ.
“We absolutely abhor discrimination,” said Steve Clark, the president and CEO of the Fayetteville Chamber of Commerce. “You should not be fired or not hired because of it. This is about an ordinance that isn’t workable or well defined.”
He said he had heard from numerous businesses that had problems with the ordinance, not because it outlawed discrimination but because of its vague definitions of illegal behavior. Clark said business owners wanted guidance on how to specifically train their managers and staff to follow the ordinance’s rules but couldn’t figure out how to do it.
Failure to properly follow the ordinance could result in a fine and, worse in the eyes of local businesses, a blow to the reputation of a company.
On Nov. 7, the chamber announced its board of directors had voted unanimously to oppose the ordinance and would urge voters and chamber members to vote for the repeal on Dec. 9. Almost immediately, Fayetteville Mayor Lioneld Jordan and University of Arkansas at Fayetteville Chancellor David Gearhart — both nonvoting ex-officio members of the chamber — wrote letters to the chamber to criticize its decision.
“My position is clear: I believe in equality, diversity and inclusion,” said Jordan, who criticized the chamber for holding a vote on the issue without notifying him.
Jordan said the complaints about vague wording aren’t valid, and Fayetteville City Attorney Kit Williams said he was confident the ordinance would survive any legal challenge. Williams was named the city administrator of the ordinance, meaning any complaint about discrimination would first be heard by him.
Alderman Matthew Petty was the author of the ordinance, which he revised several times in meetings with Williams. Petty said he reached out to the Human Rights Campaign to help draft the document, which he said was similar to ordinances passed in 200 cities nationwide.
“A lot of people didn’t realize these protections didn’t exist,” Petty said. “It’s totally legal to overtly fire someone because you think they’re gay.
“I’m not saying [the ordinance] is perfect. I’m saying it’s right.”
Petty said more than 40 Fayetteville businesses have publicly pledged their support for the ordinance. A pro-ordinance group, Keep Fayetteville Fair, held a rally on Nov. 13 at a local restaurant in a show of support.
“Ninety percent of Fortune 500 companies have nondiscrimination policies,” said Anne-Garland Berry, the group’s campaign manager. “It’s a serious problem. It is completely legal to fire somebody because they’re gay. People in Fayetteville have faced that.”
Under the ordinance any complaint would be heard by Williams, who would then try to mediate a solution between the two parties. If mediation failed and Williams thought there was enough evidence to pursue, he could turn the case over to the city prosecutor.
It would be a criminal charge with a maximum fine of $500. Williams said calling it a criminal conviction would be an overstatement because it would be in line with a zoning ordinance violation.
“It’s not even a misdemeanor,” Williams said. “It has to go through me before it gets to the city prosecutor. If someone is intent on breaking the ordinance, they can get it to the city prosecutor. It would be rare if we ever went to the prosecutor. If we did, it’s because someone intentionally wants to challenge the ordinance, someone who wants to make a statement.”
Williams said, in response to Clark’s complaints about ambiguity in language, that the law would automatically rule in favor of the defendant if the language was ever in dispute.
Clark, a former Arkansas attorney general, said that might be true in court, but just the publicity of a discrimination complaint could spell doom for a business.
“What happens is a business will go out of business,” he said. “There’s no shield; a complaint becomes a public document. If it’s ruled to have no merit the following day, it’s still on record.”
Clark said the chamber informed council members of their concerns about the ordinance before it was passed, but he said the council ignored the chamber’s suggestions. Jordan said the chamber was free to comment on the proposed amendment when the council opened it for public debate.
If there is a problem with the ordinance once it’s enacted, Jordan said, it is a simple correction to make. He and other political leaders, such as state Rep. Greg Leding, D-Fayetteville, are strong proponents of letting the ordinance go into effect and then having the council return to it if needed.
“I do know there are some concerns from people about how it was written,” Leding said. “A full-out repeal is unnecessary. I would like to see it stand for a while and then repeal it if it causes problems.”
Berry and Petty said it’s important people remember why the ordinance was important in the first place. During the debate, Petty said some residents expressed concerns they would be fired or evicted from their housing if it was learned they were gay.
The chamber’s complaints about things such as vague definitions are distractions, he said. “I think a lot of Mr. Clark’s contentions are made up,” Petty said. “I think civil rights are at least as important as running a stoplight.”
If the council ever revisits the ordinance, whether to tweak it or try to pass it again if it is repealed, the council may have quite a different makeup. Of the six aldermen who voted for the ordinance, four remain on the council and one, Adella Gray, is in a runoff election Tuesday against Paul Phaneuf, an opponent of the ordinance.
Rhonda Adams, who voted for the ordinance, did not stand for re-election and was replaced by John La Tour, a vocal opponent of the ordinance.
In the runup to the special election, both sides are marshalling their support. Petty said Keep Fayetteville Fair volunteers are knocking on 1,500 doors a day, and Clark said the chamber has mailed information to its 2,700 members to outline the reasons for its opposition.
Jordan said he couldn’t predict how the chamber’s stance would affect the city’s $165,000 annual contract with the chamber to promote economic development. Clark said he wasn’t worried about any blowback.
“I don’t have any bones to pick with the mayor,” Clark said. “The mayor and the council and the chamber work very well together. These are first-class government officials. They don’t do tit for tat.”
Berry said the pro-ordinance movement isn’t focused on the chamber’s position. It’s important, she said, to promote the ordinance and the rights of all citizens to work and live equally.
“People are going to try to make this us against the chamber,” Berry said. “It’s really not. Our focus is not on locking horns with the chamber.”
The chamber’s action has generated some hard feelings. Clark said seven businesses ended their chamber membership, and there have been abusive and threatening phone calls, including one caller who told the chamber’s receptionist to “tell your motherf****** bosses I know where they live.”
Clark discounted the seriousness of the phone calls and dropped memberships. He said he knew what would happen when the chamber announced its decision, and he compared it to 1998 when the city council passed the similar Human Dignity Resolution, which was subsequently repealed by popular vote.
Clark said at the time doom and gloom were predicted because of Fayetteville’s intolerance, but those fears turned out to be unfounded. He predicts a repeal of Chapter 119 would likewise have little negative impact on the business environment of the city.
“People already know Fayetteville doesn’t discriminate,” Clark said. “There are people just letting off steam. It’s an emotional issue. We had a staff meeting and I said we’re not taking names and making lists. People have a right to feel deeply about this. Reasonable people can disagree.”