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Greensboro to move forward on domestic partnership benefits

by Jordan Green

After waiting in vain for guidance from the office of the NC Attorney General, Greensboro Mayor Keith Holliday is putting aside caution about cohabitation and crimes against nature, pledging to move forward this month to implement a policy extending domestic partner benefits to gay and lesbian employees of the city of Greensboro.

The city has been frustrated by efforts to get guidance from Attorney General Roy Cooper on whether providing benefits to domestic partners would violate state policy and expose the city to lawsuits. A Feb. 22 letter from Kelly Chambers, the state’s special counsel for development and diversity, advised the mayor that the city has the authority to define the term “dependents” for the purpose of purchasing insurance for employees and their family members “so long as the definition of dependent is not illegal or against the public policy of the state of North Carolina.”

Holliday wrote back seeking clarification, and Chambers replied in a second letter that the city would have to assess the risks of the policy on its own because “the Attorney General’s office is not authorized to provide legal representation.”

“The information back from the Attorney General did not give us what I considered a definitive answer,” Holliday said. “We were asking for permission, so now I think we’ll ask for forgiveness. I think we’re going to go forward with a decision.”

With the last communication from the Attorney General’s office coming in March, the domestic partnership policy has been on the Greensboro City Council’s backburner for four months now. The mayor said the budget and other items have commanded its attention.

“We have been going strong on so many issues, and I’m not saying the dust is settled,” Holliday said. “It’s just one of those issues that we’ve had on the desk for awhile, and we need to address it. August is an opportune time.”

At-large Councilwoman Florence Gatten said City Manager Mitchell Johnson polled city council members in an informal meeting on July 25 to gauge their opinions. Gatten has been a vocal supporter of extending domestic partnership benefits to city employees.

City attorney Linda Miles said extending benefits to domestic partners was an administrative decision and wouldn’t require a vote by city council.

“Once council approves the budget, then the city manager has the authority to set all compensation, and that includes benefits,” she said.

The city considered implementing a domestic partnership benefit for about two years, Holliday said. Greensboro would be the second city in the state to establish such a policy, after Durham, but the towns of Chapel Hill and Carrboro were the first local governments to do so. Durham and Orange counties have also extended benefits to domestic partners. The legality of Chapel Hill and Carrboro’s policies have been upheld by a superior court judge in Orange County but the law has not been tested by a court with statewide jurisdiction.

The policies generally allow employees to add unmarried partners and their children to employer health plans and allow unmarried employees to take sick leave to care for their partner or family members. In the case of Chapel Hill, both same-sex and opposite-sex couples who live together in a relationship of indefinite duration, have an exclusive mutual commitment to each other and can demonstrate financial interdependence qualify for the benefits.

In his March 3 correspondence with Attorney General Cooper, Holliday asked: “Would it be against the public policy of the state of North Carolina for the city of Greensboro to provide domestic partner health benefits to same sex and unmarried opposite sex couples while there are currently laws on the books which prohibit any man or woman, not being married from cohabitating and which prohibit crimes against nature?”

He also asked: “Would it be a violation of equal protection under the federal and state constitutions for the city of Greensboro to choose to offer domestic partner health benefits to same sex couples while denying the benefit to unmarried opposite sex couples.”

Reached by phone on July 26, spokesman William McKinney held fast to the Attorney General’s refusal to provide answers, saying, “I don’t think we’re going to comment beyond what was in the letter.”

The first item of concern in Holliday’s correspondence was taken off the table with a July 20 state court decision declaring North Carolina’s 201-year ban on cohabitation to be unconstitutional. Citing a 2003 Supreme Court ruling that struck down a Texas sodomy law, State Superior Court Judge Benjamin Alford ruled that Debora Hobbs’ constitutional rights were violated when the 911 dispatcher was fired from her job at the Pender County Sheriff’s Office because she chose to live with her boyfriend.

It is unclear whether North Carolina’s “crime against nature” statute poses any problem to the growing number of domestic partnership benefits policies across the state. The vaguely worded statute, which dates back to English common law under Henry VIII and was last revised in 1994, states that “if any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.”

The two statutes appeared to have caused little problem for domestic partnership benefits policies in other North Carolina municipalities. In Durham and Chapel Hill, following a brief stir of passion around the time of their implementation, the policies have quietly become part of the fabric of life with little ongoing controversy.

“There were strong feelings on both sides when it was first implemented,” said Michael McGinnis, a Durham human resources manager who helped develop the city’s policy before it was implemented in 2003. “Once it was adopted, that has decreased over time. It’s just an accepted practice. It’s seen as a way to provide benefits to employees, to help us hire and retain.”

Officials in Durham and Chapel Hill said their municipality’s policies have made only a minor impact on budgets.

McGinnis estimated that between 10 and 15 employees are currently signed up for the city of Durham’s domestic partnership benefits package, and the number fluctuates from month to month just as it does for married couples.

Chapel Hill’s policy has come under legal attack twice. The first lawsuit was thrown out, town attorney Ralph Karpinos said, after the NC Press Association intervened, challenging the plaintiff’s right to maintain anonymity. A second lawsuit was filed in the late 1990s on the grounds that the city did not have the authority to provide health benefits to the dependents of domestic partners.

“Part of the reason we got sued is when this first came up I looked at the law as best I could and I said I didn’t think we had the authority to do it,'” Karpinos said. “I cited these cases around the country. We did it anyway, and we defended it.”

Karpinos said at the time Chapel Hill was considering domestic partnership benefits the city of Atlanta ran into legal difficulties for its policy. Later, the city revised its policy and the courts upheld its legality.

“Number one, we have a court order upholding what we did,” Karpinos said. “Number two, my initial opinion was based on the law at that time, and there has been a subsequent policy. The law is evolving in this case.”

Mayor Holliday said despite his earlier concern about the city running afoul of equal protection law he expects that Greensboro would extend domestic partnership benefits solely to same-sex couples because opposite-sex couples would have the option of getting married.

For Gary Palmer, assistant vice president for community affairs at Replacements Limited, a domestic partnership benefit would be the reward for almost three years of advocacy since he and other members of the Human Relations Commission first started developing a policy proposal. Palmer has since left the commission, but he interviewed city council candidates last year to gauge their attitudes.

“My understanding is that it should not be a problem,” he said. “During the last election I talked to a lot of people about whether they would support domestic partnership benefits. The answer I got was that ‘if it’s legal we should do it.’ When I have done phone interviews with candidates we have had a pretty accepting group of people. Even some people who were pretty conservative on other things were supportive of this.”

To comment on this story, e-mail Jordan Green at jordan@yesweekly.com

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