City writing new rule on minority contracts

Federal judge says existing legislation is unconstitutional

February 24, 2000|By Ivan Penn | Ivan Penn,SUN STAFF

Baltimore's law office is drafting a new affirmative action policy for awarding city contracts after a federal judge affirmed a ruling that the current ordinance is unconstitutional.

City Solicitor Thurman Zollicoffer Jr. said the city's legal team hopes to have an ordinance drafted by mid-March. U.S. District Judge Andre M. Davis said the city never demonstrated with statistical information that it needed an affirmative action policy in awarding city construction contracts.

In a memorandum last week, Davis denied Zollicoffer's request to allow Baltimore to continue enforcing the affirmative action ordinance while the city seeks a response from the 4th U.S. Circuit Court of Appeals on an appeal of the judge's ruling.

Mayor Martin O'Malley reiterated this week that his administration remains determined to expand opportunities for women and minorities. Baltimore's population is about 65 percent black.

"We're not rolling over just because of some judge's ruling," O'Malley said. "We're full steam ahead on this. This administration is absolutely committed to expanding opportunities for minority businesses."

Lawsuit against city

At issue is a complaint by the Associated Utility Contractors of Maryland, which in December 1998 filed a lawsuit against the city and the Maryland Minority Contractors Association to strike down the city's requirement that 20 percent of all public works construction contracts be awarded to minority-owned businesses and 3 percent to women-owned businesses.

The ordinance was drafted 20 years ago and amended in 1990.

Davis supported key parts of Associated Utility Contractors' complaint, killing the city's affirmative action program as it pertains to construction contracts -- about $200 million of the $345 million a year in city contracts.

Minority businesses received at least $40 million of that money, and companies owned by women received at least $6 million.

The city may continue to enforce its affirmative action policy on other contracts because the judge said that Associated Utility Contractors could seek relief only in the area it was being harmed, which was in the construction contracts.

The ruling virtually negated the city's policy because construction contracts are "a substantial part of the city contracts," Zollicoffer said.

`Pleased' with result

Arthur Bell, president of Associated Utility Contractors, said, "We are pleased with the result, because it means that all businesses will now have an equal opportunity to compete for and perform contracting."

Although the city is appealing Davis' ruling, proponents of the affirmative action program doubt that judges of the Richmond, Va.-based 4th U.S. Circuit Court of Appeals will be sympathetic to Baltimore's position.

"The 4th Circuit has been a real hostile force to deal with race and gender programs," said Arnold Jolivet, president of the Maryland Minority Contractors Association, a defendant in the case.

O'Malley said the city is studying racial and gender disparities in the awarding of city contracts.

He said he wants to ensure that minority businesses continue expanding and that new businesses receive the support they need to grow.

"We're looking at things that other cities have done" to increase opportunities for minority businesses, O'Malley said.

"I think the judge may have done us a favor. It's forcing us to create a much more flexible and living ordinance," he said.

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