Palm Beach County commissioners will meet Wednesday in another attempt to decide whether race- and gender-conscious business assistance programs should be re-established at the Solid Waste Authority. The meeting comes at a tense juncture marked by increasing acrimony among contractors, dueling studies and racially-charged allegations of favoritism and discrimination.
A decision on the programs could have a major impact on whether businesses owned by women and minorities get money and work from the roughly $450 million in garbage and recycling contracts the authority is expected to award in February. Bids for those contracts are due in September.
Wednesday’s meeting is scheduled to begin at 1 p.m. in the first floor auditorium at 7501 N. Jog Road in West Palm Beach.
Commissioners had met on June 13 to consider a consultant’s recommendation to re-establish race- and gender-conscious programs, but that meeting devolved into angry questions and racial recriminations. Tensions have accompanied debate on the topic since a $361,000 study found that businesses owned by women and minorities got far fewer and less lucrative contracts in recent years than their presence in the market suggests they should have received.
That study, similar to one conducted for the county as a whole, has been the subject of vigorous and, at times, angry debate as black and female business owners push for assistance programs. The Florida East Coast chapter of the Associated General Contractors of America — a large construction trade organization — has questioned the legitimacy of the study and argued against the re-establishment of race- and gender-conscious assistance programs.
The Solid Waste Authority had operated such programs for 20 years until 2012, when the agency moved to a race- and gender-neutral program aimed at spreading contracts among small businesses in general.
Race- and gender-conscious programs have long been the subject of intense debate and have been challenged by some white business owners as examples of reverse discrimination.
A 1989 U.S. Supreme Court decision in the case of Richmond v. Croson, which struck down a race-conscious program in the city of Richmond, Va., established that such programs can be legal only if they are narrowly tailored to address a specific, verifiable history of discrimination.
Governments then began to contract with firms to conduct studies to determine if firms owned by women and minorities received disparate treatment when they sought government contracts. Officials saw the studies as a way to clear the legal bar established by the Croson decision.
With women and minority business owners complaining that they have largely been shut out of government contracts in Palm Beach County, Mason Tillman Associates of California last year completed disparity studies for both the county as a whole and for the Solid Waste Authority. Both studies showed that businesses owned by women and minorities got fewer and less-lucrative contracts than their presence in the market suggested they should have received.
Franklin Lee, a Maryland-based lawyer who specializes in regulatory compliance, was hired by the county and the authority to review those studies. His analysis affirmed the methodology.
Lee has recommended the authority re-establish race- and gender-conscious assistance programs. He told commissioners, who serve as the authority’s governing board, that disparities identified by the Mason Tillman study were unlikely to be solved by race- and gender-neutral programs alone.
He recommended programs that would have race- and gender-specific goals for some contracts but not for others, depending on market conditions.
“The whole idea is we want to give the right medicine to the right patient with the right dose,” he said.
AGC had hired its own legal expert, who questioned the legitimacy of the Mason Tillman study, saying it was “too flawed” to serve as a basis for race- and gender-conscious programs that could withstand legal scrutiny.
Still, with the commission’s only black member, Mack Bernard, pressing the issue, commissioners voted last year to delay the awarding of the hauling contracts so the authority could re-establish the race- and gender-conscious programs Lee recommended.
The four haulers who currently service the county agreed to extend their contracts for a year — in exchange for about $7.5 million more in fees from taxpayers.
Those additional fees, along with the possibility that firms owned by women and minorities could get contracts even if they aren’t the lowest bidder, have displeased some commissioners. So, too, has the prospect — raised by a lawyer for AGC — that an unsuccessful defense of re-established race- and gender-conscious programs could lead to personal legal liability for commissioners.
Lia Gaines, president of the West Palm Beach branch of the NAACP and executive director of the Center for Business Enterprise Opportunity, said the focus on costs and potential personal liability for commissioners amounted to “obfuscation, delay and fear-mongering.”
“Who are we talking about serving?” she asked commissioners during the June 13 meeting. “You’re a public entity. It is your responsibility not just to the bottom line, but to the health, safety and welfare of all of your citizens. We are all taxpayers. Why should I bear the cost and no benefit?”
County Mayor Melissa McKinlay took offense to Gaines’ comments.
“To just assume that everybody’s going to be OK with a rate charge because of new programs that are put in place (with) these rate increases, these tax increases, I think, is living under a rock,” McKinlay said, adding that, as a single mother, she must also be concerned about the possibility of personal liability. “I do not think that is fear-mongering, and I’m offended that somebody would assume that.”
There were more sparks between Gaines and McKinlay at the end of the meeting when McKinlay said she heard Gaines call her “ignorant,” a claim Gaines said was “false” and “outrageous.”
Commissioner Steven Abrams was on the receiving end of criticism from a black female business owner and lobbyist, Tina White, who took exception to Abrams’ questioning whether the re-establishment of race-conscious programs at the authority would enhance opportunities for minority businesses from Louisiana.
Two of White’s clients are Louisiana firms expected to bid for some of the authority’s hauling work.
White described Abrams’ remarks as “racial profiling.”
“It’s his way of keeping intact the good ol’ boy system,” White said. “That was very offensive.”
Abrams said, “I regret that differences of opinion on policy have devolved into name-calling. I’ll just leave it at that. I could throw more lighter fluid on the fire, but I’m not.”
The June 13 meeting again underscored the racial divide exposed by the debate surrounding the authority’s disparity study and what should be done about its findings.
Each of the audience members who accepted the study and called for the re-establishment of race- and gender-conscious programs were black.
Brian C. Johnson, a West Park City Council member and president of the Minority Builders Coalition, wondered aloud why AGC was fighting the study and the re-establishment of race- and gender-conscious assistance programs.
“Why would a group play defense against fairness except for the fact that their members have benefited from discrimination,” he said.
Each of the audience members who questioned the study and opposed the programs were white.
“It remains our legal counsel’s team opinion that race-conscious recommendations, even if narrowly tailored as Mr. Lee suggests, would be deemed unconstitutional,” said Michelle Anaya DePotter, chief executive officer of AGC’s Florida East Coast chapter.