Board Chair David Gantt was the sole member of the board to support her proposed amendment. Vice Chair Bill Stanley and Commissioners Carol Peterson and K. Ray Bailey voted against it. At the time, Jones was the only commissioner who explained much of her thinking behind the vote, saying she saw it as an important civil rights issue.
In subsequent interviews with the Asheville Citizen-Times, Stanley and Peterson both alluded to concerns over the amendment's potential legal ramifications, although they were short on specifics. Peterson cited possible conflicts with Amendment One, which North Carolina voters approved in May to ban gay marriage.
However, Jones criticizes those rationals in her newsletter. "The majority of Buncombe County commissioners gave the nod to the threat of hypothetical and fanciful lawsuits, thus determining civil rights to be unimportant," she writes.
She cites another Citizen-Times article, published earlier on Aug. 20, which quotes legal expert Maxine Eichner as "baffled" by the commissioners' explanations. “'Amendment One does not speak to this' and is no bar to adoption of a non-discrimination clause," Eichner tells the paper.
"Of the 15 N.C. counties and cities that offer these protections in their non-discrimination policies, none have faced significant, if any, legal challenge to their non-discrimination policy," adds Jones in her newsletter.
Jones also faults her colleagues for choosing to go in to closed session to discuss any legal issues surrounding the personnel amendment with Assistant County Attorney Curt Euler before the vote. The move to go in to closed session sparked charges by observers that the board might have violated public meetings law. A draft of the minutes from the closed session released a week later reveal little about what was discussed.
"To add insult to injury, this personnel policy matter was discussed outside of the public’s rightful view, thus giving some members of the public the impression that there was some sort of important information shared that justified discrimination," writes Jones in the newsletter. "No such concrete information was shared. Hypothetical lawsuits and vague references to Amendment One’s passage were discussed, nothing having specifics to warrant serious legal concerns."
However, moments before the Aug. 7 vote, Jones herself stated that the personnel amendment came with "chances of potential costs, be them legal or financial."
"To pretend that there's not exposure would be wrong, but there's some things in this life that are worth fighting for," she added at the time.
Jones also voted with the rest of the board Aug. 7 to go into closed session to discuss the matter. Before the unanimous vote, Euler told the commissioners they could elect to receive his legal advice in public if they preferred.
Here's the full text of Jones' Aug. 20 email newsletter:
Jones and Gantt Support
Non-Discrimination Amendment and
UNC Law Professor Confirms its Legality
It should have been an easy victory for equality.
Instead it was a heartbreaker.
At the August 7th Board of County Commissioner meeting, an amendment to protect gay, lesbian, bisexual and transgender employees from workplace discrimination was voted down. (2-3 with Gantt and Jones voting for) The majority of Buncombe County commissioners gave the nod to the threat of hypothetical and fanciful lawsuits, thus determining civil rights to be unimportant. “Someday, somebody, might sue you over something.” It s not clear who, it is not clear how. It is not clear under what grounds.
This is an unacceptable rationale for not offering basic protection for a group of individuals that research tells us experiences workplace harassment and discrimination at alarming rates.
UNC Law Professor Maxine Eichner, an expert on legal impacts of Amendment One, sees no legal concern. Asheville Citizen Times August 20th.
“Two commissioners said after the Aug. 7 vote that they were concerned that adding the non-discrimination language would put the county in the position of having to extend health insurance to employees’ domestic partners or might run afoul of Amendment One.
Those explanations baffled a professor at UNC Chapel Hill’s School of Law who has studied the likely impact of Amendment One, a constitutional amendment approved in May that says the state will recognize no marriage other than those between a man and woman.
Maxine Eichner helped write a widely cited paper earlier this year that explored the possible impact of Amendment One on issues like protections for victims of domestic violence.
The paper does not discuss whether Amendment One would prohibit a non-discrimination clause like the one Buncombe commissioners turned down because authors “didn’t consider this arising as an issue,” Eichner said recently.
“Amendment One does not speak to this” and is no bar to adoption of a non-discrimination clause, she said.
She said the vote, based on reasons commissioners in the majority gave, “is just a startling result.” Asheville Citizen Times, August 21, 2012.
Behind Closed Doors!
To add insult to injury, this personnel policy matter was discussed outside of the public’s rightful view, thus giving some members of the public the impression that there was some sort of important information shared that justified discrimination. No such concrete information was shared. Hypothetical lawsuits and vague references to Amendment One’s passage were discussed, nothing having specifics to warrant serious legal concerns.
Ironically, if this conversation had occurred in public where it belonged, several facts would have surfaced immediately. For example, of the fifteen NC counties and cities that offer these protections in their non-discrimination policies, none have faced significant, if any, legal challenge to their non-discrimination policy.
In addition, NC School of Government Public Law expert Duane Juffras recently published a legal brief on Amendment One’s impact on public employers and found “passage of Amendment One does not prevent a municipality from passing measures that provide protections and benefits to LGBT employees. “
The Board of Commissioners rules currently prohibit further public discussion of this non-discrimination issue at our next meeting on August 21. If you feel strongly about this issue, I would ask you to speak up for the LGBT Buncombe County employees. They need your voice. Ask your County Commissioners to protect all employees and include “Sexual Orientation and Gender Identity” in Buncombe County’s Non-Discrimination Policy.
As always, feel free to share your input with me about this or any issue. If you would like to also contact my commissioner colleagues, I am sure they would welcome feedback.