STATE OF WISCONSIN

DEPARTMENT OF ADMINISTRATION

In the Matter of the Petition of: Dan Ross, Dreux J. Watermolen, Sharon K. Johannsen, Timothy J. O’Brien, Yves LaPierre, Emily Gardner, Daniel Klingler, and Michael LaForest.

Petitioning for Declaratory Ruling that Interprets Wis. Admin. Code §Adm 30.05(11) to Include “Sexual Orientation” as a Prohibited Basis of Discrimination.

PETITION FOR DECLARATORY RULING

NOW COME the undersigned Petitioners pursuant to Wis. Stat. § 227.41, and seek a Declaratory Ruling that the Department of Administration will interpret Wis. Admin. Code §Adm 30.05(11) to include “sexual orientation” as a prohibited basis of discrimination. In support whereof, Petitioners show and allege as follows:

1. Wis. Stat. § 20.921(1)(a)(4) authorizes State officers and employees to designate payroll deductions for charitable purposes (“payroll deduction program(s)”), so long as each participating charitable organization is approved by the Department of Administration and the Governor under the rules of the Department of Administration.

2. Chapter Adm 30 of the Wisconsin Administrative Code outlines the requirements a charitable organization must meet for Department of Administration approval to participate in the State’s payroll deduction program(s).

3. If a charitable organization does not meet the minimum requirements set forth in Chapter ADM 30, the organization is not permitted to participate in the State’s payroll deduction program(s).

4. Wis. Admin. Code §ADM 30.05(11) currently provides:

NONDISCRIMINATION: The charitable organization shall have a policy and procedure of nondiscrimination in regard to race, color, religion, national origin, handicap, age, or sex applicable to persons served by the charitable organization, applicable to charitable organization staff employment, and applicable to membership on the charitable organization’s governing board.

5. Under this Rule, as it appears on its face, even if a charitable organization discriminates on the basis of sexual orientation in the provision of services, in employment practices, or in qualification to serve on the charitable organization’s governing board, the charitable organization is permitted to participate in the State’s payroll deduction program(s).

6. This is true despite the fact that most discrimination on the basis of sexual orientation is prohibited by State law, including in public and private employment (Wis. Stat. §111.31 et seq.; §230.18), housing (Wis. Stat. §106.50), and public accommodation or amusement (Wis. Stat. §106.52).

7. Each of the Petitioners are State employees who participate, or are eligible to participate, in the payroll deduction program(s) offered at their State offices, and are thus interested persons within the meaning of Wis. Stat. §227.41(1).

8. Wis. Stat. § 227.10(3)(a) prohibits an agency from promulgating or interpreting a rule that “either by its terms or application, [discriminates] for or against any person by reason of . . . sexual orientation . . . .”

9. Upon information and belief, one or more charitable organizations currently participating in the State’s payroll deduction program(s) do not have a policy and procedure of nondiscrimination in regard to sexual orientation.

10. Upon information and belief, one or more charitable organizations currently participating in the State’s payroll deduction program(s) did not provide the Department of Administration with a written assurance of nondiscrimination on the basis of sexual orientation with their initial applications.

11. Upon information and belief, one or more charitable organizations currently participating in the State’s payroll deduction program(s) did not provide the Department of Administration or their umbrella organization with written assurance of nondiscrimination on the basis of sexual orientation with their most recent annual renewal application.

12. Wisconsin Legislative Council has determined that the omission of “sexual orientation” from § Adm 30.05(11) conflicts with the nondiscrimination mandate of Wis. Stat. § 227.10(3)(a). See 11/29/00 Wis. Legis. Council Memorandum, attached as Exhibit A)

13. Secretary of the Department of Administration George Lightbourn has also agreed that § Adm 30.05(11) must include nondiscrimination on the basis of sexual orientation in order to comply with Wis. Stat. § 227.10(3)(a), and issued a proposed Order to amend the rule. (See 2/21/01 Secretary Lightbourn letter and proposed rule, attached as Exhibit B)

14. Despite the agreement of the Secretary and the Wisconsin Legislative Council with Petitioners’ position, no further action has been taken to accomplish the amendment proposed by the Secretary.

15. A declaratory ruling interpreting § Adm 30.05(11) so as to bring it into compliance with Wis. Stat. § 227.10(3)(a) and would bind the Department of Administration to that interpretation.

16. The declaratory ruling sought by Petitioners will do the following:

1. bring an end to the Department of Administration’s continuing violation of Wis. Stat. § 227.10(3)(a);

2. require charitable organizations currently participating in the State’s payroll deduction program(s) to come into compliance with the new interpretation of § Adm 30.05(11) sought by Petitioners upon renewal of their participation in the State’s payroll deduction program(s) by having and providing documentation of a policy and procedure of nondiscrimination on the basis of sexual orientation in the provision of services, in employment practices, and in qualification to serve on the charitable organization’s governing board; and

3. require charitable organizations not yet participating but wishing to participate in the State’s payroll deduction program(s) in the future to have and provide documentation of a policy and procedure of nondiscrimination on the basis of sexual orientation in the provision of services, in employment practices, and in qualification to serve on the charitable organization’s governing board.

WHEREFORE, Petitioners request that the Department of Administration declare and rule that Wis. Admin. Code § Adm 30.05(11) shall be interpreted henceforth to include “Sexual Orientation” as a prohibited basis of discrimination, and, consequently, to require charitable organizations wishing to participate in the State’s payroll deduction program(s) to have and provide documentation of a policy and procedure of nondiscrimination on the basis of sexual orientation in the provision of services, in employment practices, and in qualification to serve on the charitable organization’s governing board, and for other such remedy as the Department of Administration deems just and proper to effectuate such interpretation.

Dated this ______ day of January, 2002.

Respectfully Submitted,

CULLEN WESTON PINES & BACH LLP

By: _____________________________________

Tamara B. Packard, SBN 1023111

122 W. Washington Ave., Ste. 900

Madison, WI 53703

(608) 251-0101 (telephone)

(608) 251-2883 (facsimile)

Micabil Diaz-Martinez, SBN 1012977

AMERICAN CIVIL LIBERTIES UNION OF WISCONSIN FOUNDATION, INC.

207 E. Buffalo St., Ste. 325

Milwaukee, WI 53202

(414) 272-4032 (telephone)

(414) 272-0182 (facsimile)

Christopher Krimmer, SBN 1023848

820 N. Plankinton Ave.

Milwaukee, WI 53203

Attorneys for Petitioners

Petitioners:

___________________________ address: _______________________________________

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___________________________ address: _______________________________________

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___________________________ address: _______________________________________

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___________________________ address: _______________________________________

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VERIFICATION

I am a Petitioner, I have read the foregoing Petition and know the contents thereof to be true of my own knowledge except as to those matters stated on information and belief, and as to those matters I believe them to be true.

_____________________________________

Tim O’Brien

State of Wisconsin )

) ss.

County of Dane )

Signed and sworn to before me on

January ______, 2002 by Tim O’Brien.

_______________________________

Notary Public

My Commission ________________