City of Mpls affirmative action enforcement judged: WEAK

‘We are breaking the law’ by not honoring Civil Rights Ordinance obligations

By Anna Pratt (October 3, 2007)

Originally published in The Spokesman-Recorder

To remedy past discrimination against women and minorities, a Civil Rights Ordinance that requires contractors for City-funded projects to employ affirmative action was passed in Minneapolis in 1967. It calls for 11 percent minority participation and six percent female participation.

Times have changed since then, though not necessarily for the better. Instead of compensating for past wrongs, enforcement of the Ordinance has become so laid back that when former Interim Director of Civil Rights Michael K. Browne, a teacher at the University of St. Thomas School of Law, asked for reports on its compliance, which are supposed to be administered regularly, he encountered “pushback.”

Browne commissioned a study by the Humphrey Institute to gain clarity on what was going on internally. The resulting 63-page report authored by Judge LaJune Thomas Lange and Lawrencina Mason Oramalu reveals “excessive noncompliance” that calls into question the City’s commitment to fulfilling the Ordinance’s objectives.

The report’s findings show problems in everything from simply getting affirmative action plans from contractors to enforcing consequences on those that don’t include enough minorities and women in their projects.

As “employee D” put it, quoted in the report, “There is a legal requirement that reports be generated to the Director… No reports have been submitted to the director in four years. We are breaking the law.”

Duane Reede, president of the Minneapolis chapter of the NAACP, said the City’s lack of accountability for civil rights is deeply disconcerting. “The Civil Rights Department doesn’t have any teeth. The Ordinance is just a placeholder,” he lamented, adding, “The report is very simple and transparent. But who reads it and who cares?”

Another critic of the City’s civil rights efforts, Peter Brown, president of the Minnesota National Lawyers Guild, is more optimistic about the report’s effect. In an email message, he said it could have international influence as an ad hoc group of racial justice advocates examines the nation’s compliance with the International Convention for the Elimination of All Forms of Racial Discrimination, to be considered by an international committee this February in Geneva, Switzerland.

Under the treaty, the U.S. is obligated to take affirmative steps to end racial discrimination, including numerous “special measures” such as the Civil Rights Ordinance. Being that Minnesota is considered such a liberal state, “This is exactly the kind of information that is likely to come to the attention of the international committee,” Brown said.

A toothless process?

Joe Boone, an African American who owns locally based Boone Trucking, the sole minority-certified hauling business in Minneapolis, brought a lawsuit against the City that was settled in November of last year, with the City agreeing it would undergo the study of CCU (Contracts and Compliance Unit) as part of the settlement agreement. Earlier on, Boone had been part of a larger lawsuit with other minorities who he said have been shut out against the City. He said he and other minority business owners continue to be shut out of City projects.

Additionally, he said the City has failed to meet other conditions of the settlement, including negotiating with Small and Underutilized Business subcontractors and “breaking down contract work items and/or services into economically feasible units to facilitate W/MBE [Women/Minority Business Enterprise] participation,” according to the agreement.

Lateesa T. Ward, an attorney who represented Boone in the case, said many people of color feel the City is falling short of compliance with the law. Some minorities are “frustrated they aren’t getting business. It’s the same people getting contracts over and over,” she said.

The Ordinance spells out the penalties of noncompliance: A contract that doesn’t meet its requirements may be canceled, terminated or suspended. Additionally, a contractor that doesn’t make a “good faith” effort to meet affirmative action goals can be fined $500 per day of noncompliance.

The report defines a “good faith” effort as a measure of whether or not an entity has acted with honest intentions, without malice or the intent to defraud. The City may also withhold 15 percent of a contractor’s payment until it complies or block it from receiving future projects.

Additionally, CCU may bring a contractor before the Civil Rights Commission, which oversees the department, for further evaluation, or to the city council. Consequences aren’t being applied to noncompliant companies, the report points out.

The protocol instead has been to issue a Letter of Agreement (LOA) to contractors that don’t make the grade, with the promise to “do better” at an unspecified time in the future. Some companies received multiple LOAs without any further disciplinary actions.

One company that had accrued five LOAs still managed to land a couple of major projects, including one that totaled nearly $2 million. Another serious non-complier that led a $10 million project slipped through the cracks entirely; it wasn’t even listed in the LOA database.

Doug Heidenreich, an attorney who deals with contract law, who also teaches at William Mitchell College of Law, said via e-mail that without determining what “doing better” actually means, LOAs are too vague to stand up, legally. He explained, “If, in promising to ‘do better,’ all the contractor is promising is to do what it is already legally obligated to do under an existing contract and existing legal requirements, the deal would be subject to challenge as lacking ‘consideration.”

That is, “This legal doctrine requires that for a contract to be enforceable, each party must bargain for and receive something of legal value in exchange for its promise. Agreeing to do something that you are already legally obligated to do does not constitute legal value,” he said.

Current Civil Rights Director Michael Jordan, who took over for Browne in June, said a judge would have to make the call on whether or not LOAs are legally defensible. Jordan, who recently graduated from law school but isn’t registered with the state as an attorney, said that since “[LOAs] have been used for years, [that] suggests that they probably are [legally defensible],” he said.

He said the department would probably continue to use LOAs as one way to deal with some businesses that don’t meet goals. “We haven’t found anyone noncompliant in the sense that we stopped doing business,” he said. “I don’t think the report actually said anyone was out of compliance. It said LOAs were issued, which put the companies back into compliance.”

As for correcting past wrongdoing, at this point, “We can’t go back to someone and say, ‘Unbuild the building you built,’ or ‘Here’s a fine for something you did in 2001,’” he said.

Determining whether or not a company made a good faith effort is subjective. “Where someone might say you did enough, another might say you didn’t,” he said.

Examining the political will

In a meeting in late August with the Civil Rights Commission, Jordan said he has started requiring that affirmative action plans be collected from every contractor. City department heads are also being notified of the requirement.

The Ordinance extends to the City itself: “All City of Minneapolis departments, including the Minneapolis Community Development Agency…shall at least annually develop and submit to the city council a plan, including goals and timetables for the hire,” the Ordinance stipulates.

“City departments will conform to requirements when they spend the money for City services,” said Jordan. “It’s clearly an important item for the mayor. He’s taken steps to make sure the message is sent, that we should be representative and reflective of the City we serve.”

Jeremy Hanson, policy aide to the mayor, echoed him when he said, via email, that Jordan “represents the mayor’s perspective on these matters. Mayor Rybak and Director Jordan take seriously the information contained in the Humphrey Institute report.”

“Yes, the Civil Rights Ordinance is rightly helping to remedy past discrimination and the mayor believes that this is for good reason, since we must continue this effort. Yes, the City should and already has an effort underway to ensure that all City departments develop affirmative actions plans with clear, accountable outcomes,” according to Hanson.

However, Jordan said it’s premature to say whether or not the department will carry out the report’s recommendations. Rather, he anticipates that a mix-and-match of some recommendations will be put into motion.

Marvin Taylor, acting manager of CCU, said the department is fine-tuning a process that would better use technology to track developments. He and others are working to make the department user-friendly, he said, by hosting training sessions for those who want to do business with the City, for example.

Altogether, they plan to be more transparent; the Civil Rights Commission, which recently formed a Contracts and Compliance Committee, will receive regular reports on compliance while job sites will be monitored more frequently. Additionally, a disparity study will help discover discrimination by evaluating minority availability in the marketplace.

City Council Member Paul Ostrow (Ward 1) said the report raises critical issues about the Civil Rights Department. “We need better enforcement, with a process that has consistent guidelines,” he said.

However, considering a tight City budget, he would support improving its operation in alternate ways. He doesn’t think throwing more money at the problem is the answer. “I don’t think funding is a given. From my experience, if there are clear guidelines, it can take less staff time,” he said.

Council Member Robert Lilligren (Ward 6) disagrees. “I think it’s unrealistic to expect it to be enforced without more resources. Obviously, what we’re doing isn’t effective. I think it doesn’t appear as if there are very severe consequences for not complying,” he said.

Council Member Ralph Remington (Ward 10) said ignorance about how race issues affect quality of life makes the problem difficult to overcome. Still, “Absolutely, it is good public policy. If we don’t have it, then we won’t be a city that will attract the creative class, diversity or culture…Those things mean a lot to me,” he said. “It needs the political will to make it happen,” he said.