MEMBERLESS COMMISSION TO ENFORCE SICK PAY LAW

"Authority to enforce the provisions of this ordinance ... is assigned to the equal rights commission."

-- Milwaukee's Sick Pay ordinance, scheduled to become law November 14th, 2008

SAN FRANCISCO MANDATORY SICK PAY POSTER
[click for details]


Special to the Readers of Milwaukeeworld.com

By Michael Horne

The binding referendum to provide sick pay coverage for all workers in the City of Milwaukee, passed by 68 per cent of the voters on November 4th, 2008, is scheduled to become law on November 14th. The administration of the law, "including but not limited to the power to receive complaints, remedy violations, adopt rules, issue subpoenas and other redress" is vested in the
City of Milwaukee Equal Rights Commission which exists on paper but has no members and has not held any meetings during the nearly five years of the Barrett administration. The ERC is part of the Department of Employee Resources, headed by mayoral appointee Maria Monteagudo.

HINES EXPRESSED CONCERN IN JUNE

In June, milwaukeeworld reported that Common Council President Willie Hines wrote to City Attorney Grant Langley, [letter] concerned the city might be in a "legally vulnerable position" if the lack of members and meetings was in conflict with Chapter 109-15 of the City of Milwaukee Code of Ordinances.
"Is the fact that we have an Equal Rights Commission that never meets and has no members merely an embarrassment, or does it represent cause for legal concern?"
Hines' question seems prescient. As his office told milwaukeeworld, "Pres. Hines appreciates the efforts of Mayor Barrett and Maria Monteagudo to implement a plan that can enforce the new paid sick leave ordinance. ... Pres. Hines has long advocated for a reconstituted ERC, precisely because he foresaw this kind of situation arising. It does no good to have an entity exist on the books if it has no members and never meets to address citizen complaints."

"ANY" RIGHTS AGENCY COULD ENFORCE SICK LEAVE LAW

Apparently the drafters of the legislation left an out for the city. According to the law, "In the event the commission, due to lack of funding or staffing, is unable to enforce the provisions of ch. 112, any agency enforcing rights protected under ch. 109 shall also have full authority to enforce the provisions of ch. 112." [Emphasis added.]
Those rights protected under chapter 109 include discrimination on the basis of "sex, race, religion, color, national ancestry, age, disability," [all enforced by State and Federal rights agencies --Ed.] and "marital status, sexual orientation, gender identity, familial status or perceived affiliation."
This leads to a conundrum, since it is hardly certain that state and federal agencies would step up to enforce the City of Milwaukee's Municipal Ordinances if the city does not provide the first line of enforcement itself. As a practical matter, Federal Court is not going to hear your city's parking cases if the city has never formed a municipal court.

WILL PATCHWORK OF LOCAL EFFORTS LEAD TO FEDERAL ACTION?
This brings us to the Realpolitik of the situation. I believe the advocates of sick leave policies are intentionally introducing them as local initiatives precisely to draw attention to the inequity of such policies being enforced on a local basis.
By focusing their activities on cities like San Francisco and Washington, D.C., and by very skilfully employing Wisconsin's little-known Direct Legislation process in Milwaukee, sick leave advocates hope to attract the attention of Federal lawmakers, which is where this sort of legislation should originate to be truly fair, equitable, and enforceable.
In this, the Mayor, the Milwaukee Metropolitan Association of Commerce and 9 to 5 all agree. But it is the workplace advocates of 9 to 5 who got us to pay attention to the issue by making it a local one.
The voters who overwhelmingly approved of the measure did not consider the arcane ramifications of the vote -- I believe they were grasping at anything that had a semblance of health care reform contained within its germ. Voters in South Milwaukee also approved a referendum asking the state legislature to make available "affordable health care coverage as good as what is provided to state legislators." Enforce that!
It will be interesting to see how things play out over the next four days and beyond. There is some question as to whether City Attorney Langley might have to appoint outside counsel in the case of the claim filed by the MMAC asking for an injunction against enforcement of its provisions. [Notice of Claim ] If he does, perhaps he'll appoint a weak counsel, perhaps one unskilled at complex litigation but strong on employment law. City Attorneys can do that if they are asked to defend a law they don't like.
It is not certain if the Judiciary & Legislation Committee, which is the venue where claims against the city are heard, can make a ruling about a law that has not yet gone into effect -- and has not yet been violated. It also does not appear that a judge could issue an injunction against enforcing the law until the committee holds its hearing rejecting the MMAC claim, thereby sending it to court.
The next meeting of the Judiciary and Legislation Committee will be November 17th, after the law takes effect. As of this writing, the claim is not on the agenda.


From Milwaukeeworld, June 13th, 2008:

HINES TO LANGLEY: "WHERE'S THE ERC?"

Is Moribund Agency "Merely an Embarrassment"
or
"Cause for Concern?"

Special to the Readers of Milwaukeeworld.com

By Michael Horne

and the MilwaukeeWorld Hound Dog Team

Milwaukee Common Council President Willie L. Hines, Jr. sent a letter to City Attorney Grant Langley [Marquette '70] yesterday, Thursday, June 12th, 2008, asking for his "legal opinion in regard to the fact that the (ERC) is out of compliance. It is my understanding that this body still exists, despite no longer having any members.""
Hines goes on to say that the most recent meeting of the ERC was in 2003, and its last annual report was filed in 2002.
"Nevertheless, the Commission is obligated to fulfill its duties as ordered by City of Milwaukee Code of Ordinances," he adds. They include providing equal housing and employment opportunities for all City of Milwaukee residents. Hines says the ERC, "which must be comprised of seven members appointed by the mayor" is not serving its function because it "has no members and has not met in five years, as required by
That chapter provides that the seven members of the commission are to serve three-year terms and "shall receive compensation," which might be a reason why the board has fallen into desuetude. [The salary is $20 per meeting. --Ed.]
Hines goes on to express concern that the current situation might put the city in a "legally vulnerable position."
He concludes, "In other words, is the fact that we have an Equal Rights Commission that never meets and has no members merely an embarrassment, or does it represent cause for legal concern?"

Hines, in his letter, files a missile across the bows of both the City Attorney and the Mayor. The former, since "enforcement will be done through the City Attorney's Office," and the latter since there is no evidence he has ever appointed anybody to the body.
The information sheet on file with the City of Milwaukee Legislative Reference Bureau, last updated on June 6th, 2005, shows that all members of the board had been "appointed by Former Mayor Norquist," and consisted of Brentell C. Handley, Buddy Julius, Cheryl Keenan, Jay A. Urban, Sr., Martha Lamelas,
Minnie L. Davis and William Thompson. Their terms expired between February, 2003 and March, 2006. Members must be City of Milwaukee residents. Julius appears to have moved to New Jersey where he is Director of Governmental Affairs for AT&T; William "Big Bill" Thompson, always a bright presence in City Hall, died earlier this year.

Office of Diversity and Outreach

Mayor's statement opposing the measure

Office of Diversity and Outreach Mission Statement

Journal Sentinel editorial