HomeMy WebLinkAboutNew Chapter 14.5 Entitled Affirmative Action Procedures ORDINANCE No. 7811-87
Passed by the Common Council of the City of South Bend, Indiana
October 26, 19 87
Attest: D . hr'----e----'�` _` City Clerk
IRENE K. GAMMON
I
Attest _ s.. /,..�, �� /` President of Common Council
1 f /
Presented by me to the Mayor of the City of South Bend, Indiana
October 27, rg 87
City Clerk
IRENE K. GAMMON
Approved and signed by me C 7gt-2 47
19
-L.. ..., ..4/` r Mayor
SUBSTITUTE
BILL NO. 103-87
ORDINANCE NO. 2g(1-47
AN ORDINANCE ADDING A NEW CHAPTER 14.5 TO
THE SOUTH BEND MUNICIPAL CODE TO BE
ENTITLED "AFFIRMATIVE ACTION PROCEDURES"
STATEMENT OF PURPOSE AND INTENT:
Pursuant to its powers under I.C. 36-4-6-1, et seq. , and I.C.
36-1-3-1, et seq. , the South Bend Common Council has investigated and
finds that there is a need to provide for equal employment opportunity
in all City jobs and equal business opportunity in all City contracts
without regard to race, sex or national origin and finds that in order
to facilitate equal opportunity and to prohibit discrimination against
. minorities and women, the City needs to adopt certain affirmative
action procedures.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, AS FOLLOWS:
SECTION I. The South Bend Municipal Code shall be amended by
adding a new Chapter 14.5 to be entitled "Affirmative Action
Procedures," which shall read in its entirety as follows:
CHAPTER 14. 5
AFFIRMATIVE ACTION PROCEDURES
ARTICLE 1. GENERAL PROVISIONS
Section 14. 5-1. Legislative findings.
(a) Based on information presented to it at public hearings,
the South Bend Common Council hereby finds that there is
a responsibility to provide for equal employment
opportunity in all City of South Bend jobs and equal
business opportunity in all City contracts without regard
to race, sex or national origin.
(b) The South Bend Common Council declares that the following
affirmative action procedures are established for the
purpose of facilitating equal opportunity, prohibiting
discrimination against minorities and women, and
remedying instances of underrepresentation of minorities
and women in certain aspects of City employment and
contracting.
Section 14. 5-2. Definitions.
As used in this chapter, the following terms shall have the
meanings ascribed to them in this section:
(a) Affirmative action means the official program or policy
of the City of South Bend as set forth in this chapter
and as promulgated pursuant to the directives of this
chapter which gives preferential treatment to one or more
groups of people who are classified according to race,
sex or national origin.
(b) Bidder means any person, partnership, corporation,
association or joint venture seekina to be awarr7Pr1 a r; i-NT
(d) City contract means any contract awarded by the City of
South Bend or any of its agencies, boards or commissions
for work, labor, services, supplies, equipment, materials
or any combination of the foregoing; the term
specifically includes but shall not be limited to any
purchase or lease of materials pursuant to I.C. 36-1-9-4,
any public work project authorized pursuant to I .C.
36-1-12-4, or other contract in which public bids are not
required by law.
(e) Contracting agency means the City department, agency,
board or commission having the power to award a City
contract.
(f) Contractor means any person, partnership, corporation,
association or joint venture which has been awarded a
City contract.
(g) Discriminatory practice means the exclusion of a person
or persons from equal employment opportunity or equal
business opportunity because of race, sex or national
origin.
(h) Minority means any person who is:
(1) Black (all persons having origins in any of the
Black African racial groups not of Hispanic
origin) ; or
(2) Hispanic (all persons of Mexican, Puerto Rican,
Cuban, Central or South American or other
Spanish culture or origin, regardless of race) .
(i) Minority business enterprise means any minority-owned
business which has been certified under the requirements
of this chapter.
(j ) Subcontractor means any person, partnership, corporation,
association or joint venture which supplies any of the
work, labor, services, supplies, equipment, materials or
any combination of the foregoing under a contract with
the contractor on a City contract.
(k) Women business enterprise means any women-owned business
which has been certified under the requirements of this
chapter.
ARTICLE 2. AFFIRMATIVE ACTION IN EMPLOYMENT
Section 14.5-3 . Application of this article.
This article shall apply to all City departments, agencies, boards
and commissions.
Section 14. 5-4. Affirmative action procedures.
(a) Recruitment. Each department, agency, board or
commission of the City involved in recruitment of employees shall:
( 1) Analyze current recruiting methods and revise those
methods which reflect any discriminatory practice;
( 2) Actively recruit qualified minorities and women for
available positions within the department, agency, board or
commission: and
( 1) Review hiring decisions of the last five ( 5) years
and revise those hiring procedures which reflect any
discriminatory practice;
(2) If necessary, set remedial goals for hiring
qualified minorities and women within each job category of the
department, agency, board or commission in order to measure
its progress in eliminating any underrepresentation of
minorities and women, as follows:
a. Jobs which do not re•uire s•ecial skills. The
goals for job categories which do not require special
skills shall be in proportion to the overall percentage
of minorities and women within the area work force;
b. Jobs which require special skills. The goals
for job categories which require special skills shall be
in proportion to the overall percentage of minorities and
women within the area work force who have the educational
and experience requirements for the job category; and
( 3 ) Review and reevaluate its hiring procedures,
decisions and goals annually by January 31 in order to insure
that they do not reflect any discriminatory practice and in
order to measure its progress in eliminating any
underrepresentation of minorities and women, as follows:
a. Review hiring decisions of the year and revise
those hiring procedures which reflect any discriminatory
practice;
b. Review hiring decisions in light of the remedial
goals established for the year and report progress in
eliminating the underrepresentation of minorities and
women or lack thereof to the Mayor, including any reasons
why despite good faith efforts the department, agency,
board or commission was unable to meet its goals for the
year;
c. Reevaluate remedial goals established for each
job category to insure that the goals are realistic in
relation to the number of qualified minorities and women
in the area work force and to insure that the goals are
being used as guidelines rather than as quotas which must
be met; and
d. Discontinue the remedial goal for a particular
job category when the underrepresentation of minorities
and women is eliminated in that category.
(c) Personnel policies and practices. Each department,
agency, board or commission of the City shall:
(1) Review all employment policies and revise those
policies which reflect any discriminatory practice;
( 2) Review personnel actions of the past five years,
including but not limited to actions related to employee
promotions, raises, benefits, transfers, layoffs, returns from
layoffs, and training or educational programs, and revise
those personnel procedures which reflect any discriminatory
practice; and
( 3 ) Actively encourage the promotion of minorities and
women to positions for which they are aualified _
( 1) Determine in conjunction with the City Personnel
Coordinator which job categories in the department require
special skills;
( 2) Implement affirmative action policies in
recruitment, hiring and employment within the department by
communicating policies internally and developing programs to
achieve affirmative action objectives;
( 3 ) Direct an initial review of all departmental
policies and procedures and provide for the revision of those
policies and procedures which reflect any discriminatory
practice;
(4) Attempt to resolve internally disputes which arise
within the department regarding affirmative action procedures;
(5) Direct a departmental review of recruitment, hiring
and employment procedures and goals annually in order to
monitor program effectiveness and to determine where progress
has been made and where further action is needed; and
(6) Report all pertinent affirmative action data and
progress including but not limited to departmental procedures
regarding affirmative action, goals established by the
department, information regarding the employment of minorities
and women by the department, pertinent personnel actions of
the department as well as anticipated future action, to the
Mayor annually by January 31.
(e) Noncompliance procedures. In the event of a dispute over
noncompliance with any of the provisions of this article every
effort will be made to resolve disputes within the City. Ideally,
disputes should be resolved internally within each department,
agency, board or commission. In the event a dispute cannot be
resolved internally:
( 1) A City employee should file a complaint with the
Personnel Coordinator;
( 2) An applicant should notify the Personnel Coordinator
of the problem in an effort to resolve the dispute; and
( 3 ) A City employee or applicant shall also have all
rights available under Chapter 2, Article 9 of this Code,
entitled Human Rights Ordinance.
(f) Nothing in this Article shall be construed or implemented
to permit preferential protection against layoffs to any employee
because of that employee' s race, sex, or national origin.
ARTICLE 3 . AFFIRMATIVE ACTION IN CONTRACTING
Section 14. 5-5. Application of this article.
This article shall apply to all bidders and contractors for all
City contracts.
Section 14.5-6. Affirmative action procedures.
(a) Qualification. Each bidder under a City contract must be
qualified in order to be considered a responsible and responsive
bidder pursuant to I.C. 36-1-9-1, et seq. and I.C. 36-1-12-1, et
seq.
submit a nondiscrimination affidavit, in the form set
forth in subsection (b) below, along with its bid.
b. Affirmative action. The bidder must have
adopted and maintain in effect at all applicable times an
affirmative action plan. The bidder must submit its plan
and an affirmative action affidavit, in the form set
forth in subsection (b) below, to the contracting agency
prior to or along with its bid. The affirmative action
plan must:
i. Provide for the recruitment, hiring and
employment of minorities and women;
ii. Contain appropriate specific goals and
timetables for the recruitment, hiring and
employment of minorities and women, which shall be
determined in the same manner as in Section
14.5-4(b) ; and
iii. Be reviewed, updated, and submitted to each
applicable City contracting agency annually.
The bidder may submit its plan to the Mayor' s designee
for review in advance to determine if the plan meets the
requirements of this article. The bidder may file its
affirmative action plan with the contracting agency prior
to submitting a bid to that contracting agency. The plan
will remain on file for one year.
( 2) Denial of Qualification. In the event the Mayor' s
designee or the contracting agency determines that a bidder is
not qualified with respect to either of the requirements set
forth in subsection ( 1) above, the Mayor' s designee or the
contracting agency making the determination shall make written
findings of the reasons for that decision. The aggrieved
bidder may appeal the findings to the Mayor for reconsidera-
tion. The Mayor may appoint a person to make an independent
review and recommendation to the Mayor. The Mayor' s decision
shall be final for purposes of judicial review.
(b) Contract requirements. Each bidder must submit the
following written commitments with its bid to be included in the
City contract if its bid is selected. Failure of the bidder to
submit the written commitments with its bid may result in the
bidder' s being nonresponsive.
( 1) Nondiscrimination commitment.
Contractor and each of its subcontractors agree not to
discriminate against any employee or applicant for
employment in the performance of this contract with
respect to hire, tenure, terms, conditions or privileges
of employment, or any matter directly or indirectly
related to employment, because of race, religion, color,
sex, handicap, national origin or ancestry. Breach of
this provision may be regarded as a material breach of
the contract.
( 2) Affirmative action affidavit.
Contractor has adopted and will maintain in full force
and effect for one year from the date of the affidavit,
an affirmative action plan for the recruitment, hiring
and employment of minorities and women. Contractor
certifies that it strongly seAkc the ii of
Business Enterprise. Such certification may be an additional
factor to be considered by the contracting agency in determining
the lowest responsible and responsive bidder or quoter pursuant to
I.C. 36-1-9-1, et seq. , I .C. 36-1-9. 1-1, et seq. , I.C. 36-1-12-1,
et seq, and other public bidding and quoting circumstances.
(1) Requirements for certification. The requirements
for certification are as follows:
a. Ownership and control. In order to be certified
the ownership and control of a business must be as
follows:
i. Minorities or women must own and control at
least fifty-one percent ( 51%) of the business. The
ownership must be continual and must be evidenced in
documents of the business;
ii. The minority or women owners must direct
or have the power to direct the management and
policies of the business and make day-to-day
decisions on matters of management, policy and
operations;
iii. The minority or women owners must be
responsible for a clearly defined portion of the
City contract to be performed; and
iv. Newly-formed businesses or businesses
whose ownership or control has changed recently
will be reviewed carefully to determine reasons
for the timing of the formation or change in
ownership or control;
b. Independent business. The minority-owned or
women-owned business must be an independent business.
Relationships with other businesses will be reviewed
carefully to determine if any interest conflicts with
certification requirements; and
c. Application for certification. Each business
seeking to be certified must complete an Application for
Certification as a Minority Business Enterprise/Women
Business Enterprise as follows:
i. The application for certification must be
completed and submitted to the contracting agency
prior to or along with its bid. The application
must be signed by the authorized representative of
the business and notarized;
ii. Certification by the contracting agency
must occur prior to the award of the City contract
in order for the business to be considered certified
for a particular bid. Denial of certification by
the contracting agency will be final for that City
contract or any other contracts being let by the
City at the time of denial of certification. A
business denied certification may correct all
deficiencies and submit a new application for
certification prior to or along with a later bid;
and
iii. All certified businesses must update their
aoolication anneal 1v h'r rti furi nrr +-hc
application is considered and certification is
authorized based on that new application.
( 2) Denial of certification. In the event the
contracting agency denies a bidder' s application for
certification it shall make written findings of the reasons
for that decision. The aggrieved bidder may appeal the
findings to the Mayor for reconsideration. The Mayor may
appoint a person to make an independent review and
recommendation to the Mayor. The Mayor' s determination
shall be final for purposes of judicial review.
(d) Procedure for awarding contracts.
( 1) The contracting agency will review and evaluate
each bid submitted to insure that each bidder is qualified
as a responsible and responsive bidder and has met all
contract requirements.
(2) The contracting agency will also review whether
the bidder is certified as a Minority Business Enterprise or
a Women Business Enterprise.
( 3 ) If the contracting agency has set a remedial goal
for awarding contracts to Minority Business Enterprises or.
Women Business Enterprises within the business category
involved in the contract, certification of a bidder as a
Minority Business Enterprise or a Women Business Enterprise
shall be considered as an additional positive factor in
determining the lowest responsible and responsive bidder on
the City contract.
(4) The contracting agency shall take certification as
a Minority Business Enterprise or Women Business Enterprise
into consideration as an additional positive factor in
determining the lowest responsible and responsive quoter on
City contracts which are not required by law to be bid when
the contract involves a business category for which the
contracting agency has set remedial goals for awarding
contracts to Minority Business Enterprises or Women Business
Enterprises.
(e) Establishment of goals. Each contracting agency shall:
( 1) Review contracting decisions of the last five ( 5)
years and revise those contract award procedures which
reflect any discriminatory practice;
( 2) Evaluate contracting awards of the last five ( 5)
years in order to determine the dollar volume of City
contracts awarded in each business category per year;
( 3 ) If necessary, set remedial goals for awarding its
dollar volume of City contracts within each business
category to Minority Business Enterprises and Women Business
Enterprises in proportion to the percentage of qualified
minority-owned and women-owned businesses in the community;
( 4) In establishing business categories for the
establishment of remedial goals, to the greatest extent
possible, use major groups of the Standard Industrial
Classification Manual, published by the United States Office
of Management and Budget, which manual is hereby
incorporated by reference and a copy of which is available
in the office of the City Clerk; and
a. Review contract award decisions of the
previous year and revise those contract award
procedures which reflect any discriminatory practice;
b. Review contract award decisions in light of
the remedial goals established for the year and report
progress in eliminating any underrepresentation of
minorities and women or lack thereof to the Mayor,
including any reasons why despite good faith efforts
the contracting agency was unable to meet its goals for
the year;
c. Reevaluate remedial goals established for each
business category to insure that the goals are
realistic in relation to the number of qualified
minority-owned and women-owned businesses in the
community and to insure that the goals are being used
as guidelines rather than as quotas which must be met;
and
d. Discontinue the remedial goal for a particular
business category when the underrepresentation of
minority-owned and women-owned businesses is eliminated
in that category.
(f) Compliance mechanisms. In order to insure compliance
with affirmative action procedures the contracting agency or its
designee shall have the right during the term of the City contract
to:
( 1) Inspect any and all of the contractor' s records,
books and reports, provided such materials relate to
contractor' s compliance or noncompliance with affirmative
action procedures;
( 2) Conduct on-site inspections in order to evaluate the
contractor' s business practices;
( 3 ) Monitor the contractor' s progress toward attaining
the goals established in its affirmative action plan by
requiring the contractor to submit annual affirmative action
reports to the Mayor' s designee; and
( 4) Review the status of a certified contractor to
insure that the contractor still qualifies as a Minority
Business Enterprise or a Women Business Enterprise.
(g) Noncompliance procedures. In the event of noncompliance
with any of the provisions of this article:
(1) The contracting agency shall serve written notice of
the noncompliance on the contractor or his representative;
( 2) Within five ( 5) days after receiving notice of
noncompliance the contractor shall either proceed to correct
the noncompliance or meet with a designee of the contracting
agency to determine a method of correcting the noncompliance;
( 3 ) If the contractor does not correct the noncompliance
in a manner satisfactory to the contracting agency within
thirty ( 30) days, the contracting agency shall hold a hearing
upon written notice to the contractor and shall give the
contractor opportunity to show cause why it has not met its
affirmative action obligations and why it should not be
suspended: and
.
Section 14. 5-7 . Penalties.
The contracting agency shall have the right, after first following
the noncompliance procedures provided in Section 14. 5-6(g) , to impose
the following penalties and sanctions in the event of a contractor' s
noncompliance with any of the provisions of this article:
(a) Forfeiture of performance bond. The contracting agency
may require the contractor to forfeit to the City its performance
bond under the City contract;
(b) Cancellation of the contract. The contracting agency
may cancel, terminate or suspend the City contract or any portion
thereof, including, but not limited to, withholding any progress
payment or monies payable under the contract;
(c) Review of other City contracts. The contracting agency
may review other City contracts to which contractor is a party in
order to determine if the contractor is in compliance under those
contracts;
(d) Suspension. The contracting agency may suspend the
contractor from working on future City contracts for a period of at
least one (1) year (or longer for continued noncompliance with the
provisions of this article) ; and
(e) Legal remedies. The contracting agency may avail itself
of any and all other legal remedies and sanctions.
SECTION II. This ordinance shall be in full force and effect,
after its adoption by the Common Council, approval by the Mayor and
legal publication, on January 1, 1988.
IP /
'ember If the C•mmon Coll
ORD1ES
CITY of SOUTH BEND
ROGER O. PARENT, Mayor
8/ ; ' -,�t 1 COUNTY-CITY BUILDING SOUTH BEND, INDIANA 46601
t-Woferi Niak
•191.0 ,;<a
t October 7, 1987
JOSEPH T.SERGE Members of the Common Council Area 219284.9321
President Council Chambers
EUGENIA BRABOY 4th Floor,, County-City Building
ANN B.PUZZELLO South Bend, Indiana 46601
Chairman,
Committee of the Whole
Dear Council Members:
JOSEPH T.SERGE I am introducing the attached ordinance for your consideraton
First District which represents many months of prior discussion and research.
EUGENIA BRABOY
Second District
BEVERLIEJ.BECK This ordinance would establish a procedure to address equal
Third District opportunity for minorities and women with regard to employment and
ANN B.PUZZELLO bidding for City contracts.
Fourth District
RERT G.Fiiffth District TAYLOR The City Attorney's office has prepared a three-page
THOMASZAKRZEWSKI "summary" of the proposed ordinance which is attached. It
Sixth District addresses a brief sketch of relevant background information,
JAMES V.BARCOME protections, and proposed procedures which will assist you in
At Large
AL B.PASZEK seeing the need for such an ordinance.
At Large
At Large instrumental thenodevelopmentrsof this Council ordinance, andnwillebe
At Large
KATHLEEN CEKANSKI-FARRAND providing additional data for the Council to consider when
Council Attorney
reviewing it.
I believe that this ordinance addresses an important need for
our City, that is, to insure equality of opportunity both in the
City's employment and contracting actions. This is not an
ordinance which seeks to maintain equal representation of
minorities and women throughout the City work force or throughout
City contracting. Rather, it is an effort to remedy in a
carefully limited way past significant under-representation of
minorities and women in certain areas of City business.
I will be recommending that it be sent to the Hunan Resources
and Economic Development Committee for a complete and thorough
review. I look forward to discussing this ordinance with you and
to seeking your support.
Thank you.
Sincerely,
Eugeni Braboy D
Second District Councilman