The race and gender disparity study conducted for the Palm Beach County Solid Waste Authority is “too flawed” for its recommendations to meet federal legal standards, according to a review of the study conducted for a contractors group.
That study, and the SWA authority’s response to it, could be up for discussion Tuesday, when county commissioners — acting as the SWA’s governing board — choose a new chairman.
Commissioner Mack Bernard, the governing board’s vice chairman, is in line to become its chairman. He has been critical of what he describes as an inappropriate and slow response to a study that found women- and minority-owned firms have not been given a fair shot at SWA contracts in recent years.
The authors of that study, Mason Tillman Associates of California, recommended that the SWA re-establish a race- and gender-based set-aside program to give women and minority business owners a better shot at winning authority contracts. The methodology of that study was affirmed by a separate consultant, Franklin Lee, a Maryland attorney who specializes in administrative and regulatory law.
In addition to Lee’s review, the SWA hired a third consultant, George La Noue, a political science professor who has frequently testified in cases challenging disparity studies and set aside programs, to provide the authority with feedback as Mason Tillman conducted its study. Critics of the authority, including Bernard, have said La Noue was hired to impede the study so no set-aside program could be established before a set of seven-year garbage hauling contracts worth as much as $450 million are awarded in February.
Eleanor Ramsey, Mason Tillman’s president and chief executive officer, described La Noue as “an unapologetic opponent” of set-aside programs, frequently referred to as minority/women business enterprise programs.
“For 20 years, (La Noue) has been AGC of America’s expert witness on more than 28 of their legal challenges to M/WBE Programs in Florida and nationwide,” Ramsey told The Palm Beach Post Monday.
Women and minority business owners in Palm Beach County have complained that they haven’t gotten a fair shot at authority contracts and want the SWA to re-establish a race- and gender-based program before the hauling contracts are awarded.
Set-aside programs have frequently been challenged in court, and, after challengers won a landmark U.S. Supreme Court decision in the Richmond v. Croson case of 1989, governments have had to demonstrate a clear pattern of disparate treatment to have a legally justifiable program. Government typically pay for disparity studies like the one conducted by Mason Tillman to provide that a proposed set-aside program is justified.
Michelle Anaya DePotter, chief executive officer of the Florida East Coast Chapter of the Associated General Contractors of America, wrote commissioners on Monday, telling them that a lawyer it hired to review the study found it “too flawed to meet Croson.”
“For the race-conscious recommendations suggested by Mason Tillman (and opinioned by M. Lee) to be constitutional, the standards of Croson must be met,” DePotter wrote to commissioners. “We urge your immediate review of the attached ‘Analysis of The Solid Waste Authority of Palm Beach County, Florida Disparity Study Final Report,’ which has crippling flaws.”
AGC’s review was conducted by John Sullivan, an attorney from Baltimore who, like La Noue, has frequently written about and testified against set-aside programs.
In reviewing Mason Tillman’s work, Sullivan said the consultant failed to adequately assess whether women- and minority-owned firms were willing, qualified and able to perform the work SWA requires. Sullivan also questioned the specifics of the set-aside program Mason Tillman recommended.
“As this analysis of the disparity study will show, the study is too flawed to support these changes,” Sullivan’s report states.
DePotter called Sullivan an unbiased expert.
“Mr. Sullivan was hired as a true independent legal expert to provide a fair and impartial legal objective assessment either way as to what has been identified as sufficient to justify what they want to do, whether the circumstances fit, and not prejudging the facts,” DePotter said.
Ramsey said Mason Tillman is preparing a response to criticism of its study.
“Mason Tillman is unique in that its studies have never been challenged and courts in two federal circuits have reviewed and approved the methodology Mason Tillman used to perform the SWA Disparity Study,” Ramsey said.
The Solid Waste Authority, which oversees recycling and garbage collection in unincorporated parts of the county, moved from its 20-year old gender and race-based program in 2012 to one aimed at setting aside 15 percent of some contract work for small businesses.
SWA Executive Director Mark Hammond has denied that he or his staff have sought to impede Mason Tillman’s study or to delay implementation of its recommendations. He said the SWA has not had an opportunity to review Sullivan’s report.
Bernard on Monday reiterated his earlier criticism that Hammond and his staff have presided over an agency that has barred women and minorities from getting fair opportunities for contract work.
“I think that there’s been a deliberate attempt by the Solid Waste Authority director and management to deceive the public and to not provide equal opportunity to blacks, Hispanics and women,” said Bernard, the only minority on the county commission, which also serves as the Solid Waste Authority Board.
Bernard said he is unhappy that women and minorities in the county have not had a fair shot at SWA contract work.
“What’s flawed here is how the Solid Waste Authority has treated minorities and women in contracting,” Bernard said. “That’s what needs to be reviewed. I have no confidence in the Solid Waste Authority executive director and management in terms of providing women and minorities opportunities in contracting.”
An individual commissioner does not have the authority to terminate Hammond. That would take a majority vote of the seven-member governing board.