Travis County Commissioners Court
July 20, 2004
Item 13
Number 13, consider and take appropriate action on request from the city of Austin to participate in second generation disparite study.
>> good morning judge, Commissioners, sid grimes, Travis County purchasing agent. This morning at the table I have sylvia lopez, our hub coordinator. To my right is leno mendiola, outside counsel for the city of Austin and to my far right is jeff. Travilian, I don't know your direct tightal.
>> the director of department of small and minority business resources at the city of Austin.
>> the city. As you know, we've had a hub program here in the count for the past ten, 11, 12 years that i've been here and before that. We have had a race-neutral program all those years and have had a program that was based on good faith efforts. We are very proud of the job we've done under the restraints of the law that we've had to work within. The city of Austin, as you know, has had a much more aggressive program. They have done a disparity study which is ten years old and the city has come to us to participate in a second generation disparity study with them. Those studies -- they are anticipating costs of about half a million dollars. They have asked other partner, I believe capital metro has committed. Ut, I believe they've asked them. Lcra, who has not committed. And Austin independent school district. So with the five of u. The cost to the county would be around $500. That cost, we're not sure what it will be if other partners do not agree to participate. We also have not gotten interlocal agreement that lays out the specifics of what we would be getting for a hundred dollars, but although the city has provided and I believe you have got the backup what they anticipate. I'm going to let them go into more detail on what the study will do for them and for us. Jeff, if you would like to...
>> thank you.
>> a briefing of what the study will do for us.
>> sure. Your honor, Commissioners, leno mendiola, outside counsel for the city of Austin, represents the city on affirmative action issues for a number of years. As ms. Grimes reported, the city has had a race-conscious affirmative action program and contracting for the benefit of minority and women-owned businesses for a number of years. The city first undertook a program in the early 90s after some supreme court precedent and has since that time tried to keep the program updated with recent constitutional directives from the supreme court or from other courts around the country. As you all are undoubtedly aware, over the last few years really in the period after 1995 in case, the attarand case, a number of local municipal and county affirmative action programs were struck down as unconstitutional. In fact it's fair to say that the vast majority of programs that suffered challenges were found to be unconstitutional. During that time, the city and other entities carefully administered their program to avoid challenges and throughout that time period sought additional court guidance on the constitutionling underpinnings for their programs. That court guidance didn't come until the late, middle of last year in a case called concrete works versus the city of denver which was upheld by the tenth circuit. In that case the court of appeals approved the city of denver's program and offered some guidance on what a constitutional affirmative action program in contracting would look like. The challengers to that case sought review by the supreme court and the supreme court elected not to review that. Making that case the law for the tenth circuit. Of course we operate as you all know in the fifth circuit and although the tenth circuit precedent is important and provides some guidance, it's not necessarily precedential in the fifth circuit. Nevertheless, that's the most recent date we have on the constitutional underpinnings for a local affirmative action program. So based on that information, the city of Austin thought it would be appropriate to take a look at, once again, the evidence that we have that supports the city's program, and in so doing, the city manager thought that it would be an appropriate time to partner -- seek partnership with some of the other local governments and undertake a joint effort because frankly much of the data that supports the city program would also support a county program or a region-wide program for capital metro or lcra or others. So I have some information on the specific programs, the specific studies that would be undertaken, support the compelling interest arm of constitutional office and I'm happy to go through that with you fine it helpful, otherwise I'm happy to simply answer questions.
>> question is more of what is the backup plan? Because I have every intention of supporting requests, but there's also this thing called check. I would hope that others would participate because I think they would find a great value the same information at aism sd, ut, lcra, anybody else you would like to add on, what would be the backup plan if it's only capital metro and the city and Travis County, the volume of purchases are absolutely not each close to being equal. I mean what's the city's plan in terms of they would divide up the cost?
>> well, that is obviously an important question, and before any work is actually undertaken with the consultants and much of the work is going to be undertaken by statisticians and economists, we have to know with certain degree of assurance who the partners are, and then before any kind of contract is signed with the consultants, we would have a plan to divide up the cost, the expected costs according to some negotiation or some formula or some other kind of cost allocation methodology among the participants that we know are willing to agree. Right now we're still trying to get the participants to agree and trying to get some feedback from the potential partners. So the idea is figure out who is going to participate and then figure out with precision how much is the cost going to be and figure out a methodology to figure out that cost before the work begins.
>> I know you've been asking aisd for quite awhile. They're fixing to do their budget long before we do ours. Is there a drop dead that we need to have an answer? Because the longer we delay, the longer we delay.
>> that is exactly right.
>> that's probably an operational question and the idea is do we suddenly want to have the answer from them as soon as possible, however, the needs for our program, and I think the interest of of all of the other programs dictate that we would probably move forward. And if at some point they determine that it's necessary or important for them to participate, they could come in at that point.
>> so...
>> the schedule for the city only?
>> basically we are trying to go in front of counsel on the 29th which would be next week to determine who is participating at this point.
>> you would expect ak from the the -- action from the council on the 29th?
>> we do expect council to vote up or down and give us the authority to move forward with our negotiations.
>> I have two or three, but I could ask now or later. Is the city convinced that the disparity study has made a difference?
>> absolutely. It has given us the student to determine the availability and commodity code by commodity code and that available has dictated the goals that we have made for each project. So we feel that the success that we have -- that we've had is directly related to the information that we've gotten about available firms on a case-by-case basis.
>> I would -- I completely agree with what jeff said and I would note that the last ten years or so, especially in the time period leading up to the last couple of years when really just program after program was being struck down around the country, including in places where you would expect a program would be -- would be constitutional, places like jackson, mississippi had its program struck down, the city of Austin was able to maintain a program that it operated in a fair and even handed and jet aggressive manner, which was directly related to the evidence that we developed to support the program and also the way, frankly, it was administered.
>> so you think that cities like jackson and guess and others that had their program struck down did not have a valid disparity study that factored into the decision?
>> yes, that is correct.
>> the information you mentioned sharing with us a few minutes ago is that in write something.
>> yes, an information that any front of me is information you have in your backup material. What it is is a description of 7 different studies that would be undertaken as part of this overall package. Five of which would be common to all participants, the last two (h) two of which would be customized for each participant that undertakes this effort.
>> okay. So that is the one for ms. Grimes? That is in our backup.
>> it hob the third page in our package.
>> it's scope of work. I'm happy to go into detail if you need -- on what the studies are.
>> the backup of signature don't mean you don't stand behind it, it just means there's no signature. This is from you, these three pages?
>> yes from, the city of Austin to ms. Grimes, correct.
>> that is correct. And i'll report that I put that together. I haven't seen exactly what was sent to ms. Grimes but I drafted most of the backup material for the city so I suspect I actually drafted them. That's what I gave sylvia.
>> very good.
>> so the way I see it working is for every entity participating in the study, that would be some data I guess coming to all of us simply because we're located geographically here and then that would be a little bit of difference based on respective history?
>> that is correct and also purchasing patterns and commodity codes, where you spend your money, that type of thing, and I would note that without giving you any kind of legal advice obviously, but one of the benefits of participating is that the consultant, the -- the experts who put together the study are experts that have experience supporting these studies around the country in a testifying mode. That is they're not only economists, statisticians that conduction the study, they testify in support of them when called upon and that would be something that they could do based on the customized data they put together for you.
>> I would also note -- I know time is precious, but from the city's perspective, this is not solely about legal analysis but it's really about a common, you know, regionwide public government interest working together on something the city believes and I know the county believes also is very important.
>> Commissioner Davis?
>> yes, judge, thank you. Last time that this issue came to court, before this direct on what we're doing now, we met with others that were in the audience, at that time, and black contractor's association I think with mr. Harper and also I think hat and i, and of course being a part of getting and making sure we progress in a positive manner as far as how we'll resolve the inequities, as far as the way we deal with businesses, minority and women-owned businesses here in this community. Of course, my question is that what we're doing here is this basically an agreement to some of those concerned? Because they did bring the black contractor, both james harper and [inaudible] they did bring some very legitimate concerns and subject matter to my attention and to the court's attention on that day and what I'm trying to see is that will this study absolve some of the things that they brought to us at that time with such particular study?
>> well, I think you're going to have to get legal counsel to answer that question. What we have been told and i've had conversations with david escamilla who has met the committee that you put together, but it should help us. I mean what it will do for us is we will start giving preferences and if folks do not meet those preferences then we have the right, then, to reject their bid. That -- you know, it gives us some enforcement powers, I believe. It's going to create a whole lot of work for us, and the court needs to understand that, that we will need additional resources to implement this program, both in human resources and computer programs to help track this information but it gives us a step closer to being able to do what the city does and that basically is if you do not meet those good faith efforts and try to get minority participation, you won't do business with us.
>> go ahead.
>> just answer that further.
>> go ahead.
>> it gives you an opportunity to create an infrastructure that is not solely voluntary. It gives you an opportunity to put in places -- to put in place policies and procedures and to give those policies and procedures teeth, reinforcement.
>>
>> (one moment, please, for change in captioners...)
>>
>> ... Know if the person that will be doing the study will be steady folks. You know, do we have to have a joint agreement interlocally to agree that these people will do the study? Those kind of questions I think are very paramount in my mind because the who in my mind is the driving force. So could you maybe allude to that a little bit?
>> yes, sir. The entities that will be procuring the study will be the entities that agree to participate. And the study will be on behalf of every party that agrees to participate and will not be on behalf of the parties that don't agree to participate simply because that data won't be available. So it's not going to be the city's study that the county could use or capital metro could use, it will be the study for the city, county and capital metro and whoever else agrees to participate. So -- and that's very important because that data that supports the studly come from the entities that agree to participate. So it will be at least the common portions of the study will be procured by the -- under an interlocal, yes, sir.
>> my understanding -- there will be -- I'm sorry.
>> I'm sorry. My understanding is that we will have to provide daylight take, and sylvia has already started to look at the data. My understanding is that we were talking about or the city was talking with colette holt about participating in the study which she is an expert in her field. And then as lena said, you have statistic teugss and economists who will be working on it. So it will be a joint effort. We do need to negotiate the interlocal and tie down a price and the specifics of what we are actually going to be getting.
>> okay, that was one of the points -- the vehicle, the interlocal to make sure that -- something like this is as good as the data and if the city of Austin has data and we have data, hopefully all that data is good and -- but what you are looking at. So we're going to have to find the data for them to look at.
>> in a sense this is a cost-sharing project among governmental entities, capital metro, city of Austin and possibly Travis County Commissioners court if the court decides to vote and support this. What is the deadline? Because if I'm looking at this correctly, you are saying about six months is a good time frame to come back with something for this study. What is the deadline for any other governmental entity that would say, hey, wait a minute, the train has left the track on the disparaging study. How long is the time frame at the end of this six-month time frame when anybody else can get on board and also share in the cost of such a project?
>> well, to answer that question, ideally we would like every entity to move out of the train station at the same time.
>> I understand that.
>> and hopefully that can occur. However, you know, our goal is to -- is to have everybody hopefully together by th 29th. 29th of July.
>> so the call is still -- has still gone out to, like, the h.c.c., The lcra, the aisd and others that may have common interests in such a project r-rbgs they on alert that this is the last call?
>> well, we have been talking with them to let them know what our time line is. So yes, they know that. They know our time line, yes.
>> okay. Finally, is there any possibility of -- of finding out exactly -- because I have been hearing a lot from the -- the reason I'm asking this question, I have been hearing a lot from the m.b.e. And w.b.e. Saying we haven't been getting a fair shake as far as the procurement process, we just aren't there. Have there been any feedback or meetings set forth to alert the public that, yes, something is in progress and we're looking at ways to correct the situation here in Austin, Travis County?
>> well, Commissioner, I -- I have to sort of disagree -- you know, respectfully disagree with thaw people don't have a fair opportunity to do business in the county.
>> well, no, listen to -- hold on. Hold on. [multiple voices]
>> hold on. I didn't say you. I'm saying persons that have told me that. And I haven't certified to say it's true or not true as far as the results of those statements.
>> I --
>> hold on. Hold on. What I'm saying is that those are the things that i've heard from the community, that they have not been getting a fair shake.
>> we get --
>> not saying that's what it is, but I'm just saying -- and my whole point is the community, the business community out there right now that may be listening to this, I don't know, but is there a mechanism in place to whereby we can let those folks and others know or basically through the community that we -- if the county decides to do this today, that we are looking at ways to correct the problem that they allegedly and -- and I guess they have their own allegations and stuff like that, allegedly say that they aren't getting a fair shake, and that's what I'm trying to say about getting information out about trying to correct the problem. Is there any mechanism in place?
>> is it my turn to speak?
>> yes.
>> as you know, we have sylvia and now betty in my office who attend chamber, minority chamber meetings on a regular basis. Sylvia and betty also network with u.t. Coordinators, the city of Austin, capital metro, school district. We have ongoing work shobs to address these ongoing concerns of the minority community. As you know, we had a 10-year anniversary party in may that sylvia and I and my office participated in. We had over 70 minority businesses there who were very complimentary of our program, the efforts that we're making. So we have ongoing communication with the community that, you know, we are -- this court cares about disparity and past discrimination and that y'all have put forth your money to help alleviate the problems that we've dealt with. They've always been legal problems and it's always a resource issue. And you have the very difficult job of deciding where you are going to spend money. And this is just another struggle in all of our society to correct the ills of the past.
>> okay.
>> Commissioner, I would like to make a run at that too real quick. First of all, I think it's going to get out but let me express, what's being brought to you here today, the program they are trying to get partners in, the disparity study specifically, the scope is tied just to construction and construction-related services. Not every service that the county buys are all good. And to answer your question about getting information out to the public, including in what cyd and sylvia have been doing is dealing with the contractor associations. I myself attended a meeting and they know about it and are in support of these types of efforts. At least for that segment of the community, the office has done a good job of reef be out to the community.
>> right. I've been hearing complaints and those complaints were really not in the construction industry per se, but some of them were, so I just have to reveal what's been told to me as I go through, you know, the the can and people come to me and ask me questions.
>> another really good program is the community mentor protege program that a.g.c. Sponsors with some of the associations. That's been very effective helping the smaller business to come on board to work with the bigger firms and get experience.
>> and we're trying to create additional opportunities and additional venues to work together. We work together quite often. We're fortunate, we see you at our facility quite often working with a lot of people that work with us, and we have been working through our advisory committee and subcommittee on issue to make sure that the message is out there. But we look at you all as partners and want to expand those partnership opportunities.
>> another item, Commissioner, we've got them on the table over there, is you have approved in the last month or so a job or the contract with jamail construction. They are going to be doing a lot of smaller construction repair services in the county. Sylvia along with their hub coordinator is sponsoring a workshop this Wednesday night at the city of Austin facility where all the minority associations have offices to talk to the community, the minority community specifically about the opportunities that they will have with the county. So these are some of the things that we do on an ongoing basis to help educate the firms on what's available and where they can go for assistance.
>> and make sure I -- get something clear as far as the -- as far as the categories that we look at, of course it's categorized, and I remember when the black contractors association did come before us on their particular concern that there were other categories that I made mention of as far as not being that, and those are some of the complaints that we have experienced. But the more categories you have, the more expensive the study as far as disparity study, it's my understanding. And it's true. And I guess the city may have more categories under its portion of -- as far as inclusiveness in the study which everybody would be able to benefit from. So those are some points I really want to make here that everyone understand it's just not contract in situations as far as the disparity study is concerned. The broad picture is more categories other than that and I think they need to be highlighted that we aren't just focusing on one subject matter here. All right. Thank you.
>> Commissioner Gomez.
>> I also am supportive of the disparity study and I think that capital metro certainly has chosen to participate because we want to keep our records updated. Staff also spends a lot of time with the board of directors setting goals for each of the projects for hub participation. And they follow up on that on those goals to make sure that they are met. But aside from that, we also have instructed staff to make sure that the projects are finished on time and in budget. And so -- and I think that has been possible. So I will assume that that's also possible with this particular study, that while negotiations will go -- will occur between those bidding for the projects and the city of Austin and Travis County and whoever else chooses to come on as partners, that that goal will not be lost. That projects need to be completed on time and in budget because it's taxpayer money that we are using.
>> absolutely.
>> and any time that we -- I think we learned real fast over here at the county that any time that projects are delayed, especially those that have been approved by the voters through bond projects, bond elections, that it winds up costing the taxpayers additional money, and they are not too happy about that and they let us know. And so one of the things that I never want to go out and face the public with when they review my -- my performance in office is to have to tell them that I haven't kept that as a goal. They want their projects completed on time and in budget because they don't want to spend additional money, and I don't blame them. So I guess I don't want to assume anything, but is that one of the goals as well of any disparity study that leads to programs that we implemented?
>> yes, we absolutely want to make sure every project that is bid out through the city of Austin is done properly and on time. So that is our primary goal.
>> okay. Because I know at capital metro , I mean we're watched by a lot of people and we know it. And so all the more that we accept responsibility to make sure that not only do we have hub participation, but that we have the staff that rides herd on anyone who has a contract so that we make sure that the performance is there and that the completion of the project is there on time and in budget. And so -- but capital metro shouldn't be the only one who does that simply because we're watched closely. I think that we all have that kind of responsibility to our taxpayers. The question that I also have is who would make this budget request? The Commissioners court or purchasing? The amount of money that it takes to pay for the disparity study.
>> travis is here. Travis -- I think it doesn't matter. I mean you would approve it, the Commissioners court would kpwheugs the study. It could be in my budget for payment purposes.
>> my only question was where would this go and was it submitted in a budget request already or is this one that hasn't been submitted?
>> it's not a budget request so it's nothing that is included in the preliminary budget. When we met with cyd during their budget meeting, it was discussed that this was a possibility. She's mentioned it to me in the past but just wasn't sure when this was going to happen so there wasn't a request submitted. If this is something that the Commissioners court wants to put in the preliminary budget right now, I submitted a memo as backup to this and the payment could be paid over a two-year period so we would recommend half or approximately $50,000 would be included. If that's something you want, you could just direct to us include that. We're still finalizing the preliminary budget and we could include it right now or it's something that could wait later in the budget process.
>> okay. So just one additional comment. We set the goals on the hub participation that we anticipate on each project, and our information is based on the availability of hubs who do that particular kind of work who are registered with capital metro, and I guess that means they are registered with the city of Austin as well because of the study, and we are partners already. But that way we -- we know the availability of hubs that do that particular kind of work and we're able to get moving fast. So that might be something else that we consider in our program too if when we get there so that we don't lose a lot of time with trying to find people and are there any and how many are there. So I think we can, you know, make that possible to know ahead of time who to send the bid forms to and who we anticipate getting a response from and then know also that the responses we get are a good fit with the projects that we are putting out for bid. So I look forward to working on this in the future if we go that route. Thanks.
>> we had some of the information, but we need -- you know, we need the minority firms to sign up with us and let us know they are out there and they want to do business with us.
>> exactly.
>> because once they are in our database, they get notified that there's a project. So this will just help --
>> anybody who ever asks me, I tell them to call purchasing and get registered and get on the mailing lists.
>> yes, for sure.
>> Commissioner Daugherty.
>> well, I'm always a little nervous with studies. I think they can tell you what you want to hear. And I'm -- I'm particularly concerned about getting caught up in this process because I think what is driving some of this is all the stuff that's made the papers lately. Austin pays private organizations hundreds of thousands of dollars each year to keep small companies particularly those owned by women and minority owned business. No one seems to know whether the money does any good or not. That doesn't set well with me. I mean I -- if there is a problem here -- and what I'm hearing is that the county doesn't feel like that we have a problem. I suppose that, you know, with some sort of a new study, I mean there would be indications that, you know, that we need to tweak or that we need to do some things that we're not already doing, although I don't hear -- yes, I do hear people that will call my office and say I don't think that that was right or that's being dealt fairly with. As a guy that's built a couple of businesses in town, I mean, you know, it's easy to go out and find people that can do a job. I mean you tell them what the job is and, you know, I never ask what someone's race was, whether they were a female, whatever. They submitted it the job. If the bid was right and they had good credentials, they got the job. And I think that that's what we try to do. I mean if I -- if I found there was blatant disregard for that in the county, i'd be all for these kind of studies. But when you've got 11 organizations and you've spent 13 -- and there have been $13 million expended to make sure that w.b.e. And m.b.e. Businesses, you know, have gotten jobs, I'm wondering how much money do you have to spend in order to see that that's done. Now, maybe, you know, some of those have leaked over into us asking with, I don't know, but, you know, unless i've got a situation where our purchasing department is telling me, you know, we get a lot of complaints, we have a lot of problems, I don't -- I'm particularly not happy that, you know, we may not be -- I would like to see where lcra and aisd is on this thing. But I can see where the city of Austin said, hey, share the cost. We've got a $500,000 ticket here and we need some help. That's basically what this thing is. Because we don't -- we don't have an outcry of problems, you know, in the county, not that I see. So I think that it's -- you know, obviously the city is in a situation where they are going to have to do this because I think that the city is up against the wall with regards to, you know, making headlines and obviously there being something going on with the program over there. But I don't -- I don't feel like -- I'm not happy to get drug into something like that and I kind of feel like that's what's happening with the county and I can see where maybe a couple of the other partners are going we don't have issues with it as well. So just thinking out loud, gentlemen, I mean that's, you know, where I'm coming from with that. So cyd, I mean is it of your opinion that, you know, that we do a satisfactory job from the county with regards to awarding contracts and being very vigilant in our disparity, notice, consciousness?
>> I certainly believe that everyone has a fair opportunity to come into the county, into my office and get signed up, tell us what they do and have a chance to bid on projects. I also believe that for the money that we have invested in our program, we have got a big return on our money. What this study will do, though, is give us more ability to enforce the larger companies to do business with the smaller companies.
>> but do we need a policy, though, to enforce?
>> yes, you do.
>> I mean do we need to participate in this study to enforce or can we autonomously go, you know what --
>> that's why I went over there to get this. Let me set a little background. What the Commissioners court does with purchasing throughout the year is they set -- we set goals, purchasing goals. But those goals we've talked about are voluntary. I forget our consultant's --
>> we were at 30% for years, and then we adopted the city's --
>> right.
>> -- goals.
>> for voluntary programs which we can't legally enforce, purchasing does a great job. But in order to really achieve the goals that have been set, you need to enforce that and here's where the law kicks in. Supreme court has said that in order to -- let me back up a second. That voluntary program means, you know, one basic tenet. Purchasing cannot take race, gender into account when they make their contracts for bidding. The supreme court has said the only way you can do that is if you meet generally two tests. One, past showing of a disparity, and two, an early tailored program to address that disparity. So we've never had that program so we've just been going on a voluntary program saying, all right, we're not going to look at these categories in order to make decisions. What we're doing is we've set our goals in a community that we all want to live in, these are the goals that we would think should work. And we prod and we, you know, try to convince contractors to meet those goals, but they are completely voluntary. In order to make them more enforceable, we need to meet the supreme court test, that first test showing that past disparity that it exists, that's what this study will achieve. Then we would have to -- after we get the results of that study, we would have to come back and take the results of that study, see with the see pair advertise are and device a narrowly tailored plan to address that disparity. When we did that we can enforce that plan.
>> so then really what we are being asked to do is to create something that is going to force us to do something which in turn could force us to have higher costs. I mean because if somebody -- if somebody knows that you have got to comply with this program, then you could have higher costs.
>> no, you -- let me back up because I can see where you might see. There's no forcing. The Commissioners court -- just because we do the study and the study may show yeah, certain groups don't reach what might be expected, now, there's a legal force unless someone can really show there is some active behavior like you addressed earlier, if you saw some kind of acted concerted effort to deprive any one group, you would react to. That this is a tool, once we set the foundation, enables the Commissioners court to go forward and take action to address those should they choose. Now, whether it will cost more money, yeah, the second part of that narrowly tailored plan, depending on which way we go. I don't have ideas yet on -- I would really rather wait and see what the results are before we start determining what type of a plan the Commissioners court might be interested in addressing.
>> and I think the Commissioners court can still exercise a lot of common sense and thinking about how we implement this program. We do not have to go out and hire and pay a lot of firms to help us with that job. We do not have to get into trouble by hiring people who do not know how to do the job and who would cost us money, yes, that would cost us money in the long run. But I think we also have the responsibility of educating people who want to do business with us. How the county does business. How they are held accountable if the job is not done correctly. And it just bombs out. And that they have to have a bond. That's who we go back to. And there are some responsibilities that come with having the right to get a job. There's a responsibility of doing that job right the first time. And that they are costs not only to us but to them. So there's still a lot of work to be done to prepare this program correctly and fairly. And so -- but I think we all are going to have to use a lot of common sense and think about what we do.
>> en I think the thing that was diseven genuine for me having gone through quite a few construction projects, even with our voluntary program, and as jeff correctly pointed out, it is still going to be the decision of the person putting forward that bid as to whether they accept that subcontractor's best estimate. But to put together estimates that included legitimately hub businesses and then we find out after the fact with absolutely no clout to do anything about it, to find out that those folks that we thought genuinely were going to be a part and we counted on that voluntary participation, they got swapped out. And the people we thought were going to be included in this process, it dumped. And for no darn reason other than they can get away with it. And they didn't make an effort to try and find another hub. It was never explained. A voluntary program and they made representations that indeed the hub community could be a part of it with the best bid to be brought forward with the best bid, and then they said we're out of here and made zero efforts to explain it and we had no enforcement and it has happened to me on a couple of projects and I'm not happy with it. Sylvia and them can only write -- they have no enforcement. So I want something that has some teeth to it. And I don't think it has to be something that means that we add 49,000 people to just keep up with paperwork. We have the most modest program in the world. I remember when it was just marvin on, like, a half-time basis. And I think it has appropriately grown in very -- very appropriate measures. So we're not talking about adding 10 more people on, we're talking about maybe adding one more person o I would argue that betty and sylvia probably already need the one person just to do the business add hand. So I don't think we are going way out on a limb, we're doing what's necessary and it's not something that I think is going to be overbearing in terms of paperwork.
>> well, I just --
>> give you a chance to finish, Commissioner Daugherty.
>> legally, I mean, you know what? I'm not in favor of somebody somebody out either. That would really tick me out. Especially if I thought it was because of race. I mean what I want to know is I mean if -- can you stop doing business, can you next time not award a contract to somebody if they have --
>> no.
>> well, then we need to find out legally -- if we're going to put teeth in something, let's put teeth in it and get somebody's attention. I am for doing the best job and I'm for getting the best price whenever we do county work, but I want to do it fairly, equitiably and that's what -- that's what I'm after. So legally somebody needs to tell me, Commissioner, here's what you need to do, because it gets around, you know, the town pretty quick that if that's what you do, if you monkey around with something like that, then you are not going to do business with Travis County. So I mean that's -- I'm looking to find a way to do it that way versus spending -- and it's not just disparity. I mean I just go crazy every time somebody says why don't you do a $250,000 study or $500,000 study and all of a sudden bingo you don't have any issues. My whole point, we could do this, we could spend our share of this thing and still have as many phone calls come to our office about, you know what? I mean, you know, we aren't being dealt fairly with, this or that. So that's my issue with this thing that is correct I think that we just will watch $100,000 of our money spent and we have the same issues. Now, will we have current? Yeah, we'll have 2004, 2005 date tarbgs but I don't know whether I can use that any more effectively than what I'm using the 1993 data with. So I guess -- I'm sorry, I went off.
>> no, no, no. I'm sorry to interrupt you. It's just a little different in that the law is very clear that we have a wall in front of us. We cannot take certain identifying characteristics into account. We are prevented from doing that. There is one door to give the Commissioners court to look at those factors and in order to get through that door you have to meet two key requirements. Is the first of those requirements. I think what you talked about spending money on a study that's just more updated data, that's not real what I this is. This is a study to determine whether we qualify to go through that door and take -- have many more tools in your toolbox to be able to address these issues. Going back to what you talked about with Commissioner Sonleitner's concerns about how can we enforce those, we've looked at some of that before. There are some things we can do. The specific one you talked about can we keep them from bidding maybe the next time. Really the only restriction we have on not awarding to a low bidder is if they are not a responsible bidder and we have to sit there and say the fact that you didn't stick to your voluntary compliance of choosing these gender or these minority subcontractors, even though you weren't legally obligated because it was a voluntary program because we can't legally obligate them to do that based on race, even if they do that and weren't legally obligated, we're going to say you weren't a responsible bidder and therefore we're not going to award you a contract. We have concerns about whether we could go that far. It's bootstrapping at the least and it's not the best legal position we want to be in to be able to enforce our goals. This would give us greater tools to do that.
>> sometimes, I mean, having that -- and maybe you can't do it legally, but you no what, when the other side, when the contractor knows that they really ticked this court off and did that, and I would like to know that. I would like to know this is what we were told and this is what happened. I mean whether it's on Commissioner Sonleitner's deal or whether it's on Commissioner Daugherty's deal. That's not going to set well with me. And you don't legally have to do things to get people jerked in line. I mean you know when they go you know what, it's kind of swimming upstream with the Commissioners court because we did something that we weren't supposed to do. We told them who was going to be our subs. And all of a sudden -- unless somebody has got a real legitimate -- and sometimes you do have legitimate reasons why you say you know what, I mean the person gave me this, then they didn't show up, you know, and all of a sudden I started having issues. I think all of us are saying we can't will rate, you can't phaofpl o. O. -- tolerate, so we're going to move.
>> I will have two or three legal questions for executive session.
>> that sounds fine.
>> so we did a study, then a plan. That's what I'm hearing. Not only the disparity study, but a plan based on the findings of the disparity study.
>> that is correct. And one of the -- one of the customized reports that would be produced in conjunction with the study would be a program review. And I know that you have colette holt as a consultant and i've worked with her many years. I don't think there is anyone around the country on these matters than her. And so part of the overall package would be a program review that would outline a map on how to further, you know, add some definition of flesh to your program.
>> how long will both of them take?
>> well, the idea is to have at least for the city our goal is to have both of those completed by the end of this year.
>> end of this calendar year?
>> the end of this calendar year 2004.
>> so we're in Travis County. So what's the schedule for Travis County?
>> well, I think that would depend on what you like to do, but the data will be available and the consultants will be available so that you can meet the exact same time frame.
>> I mean when we can complete both of them is real important, I think, because of the next question. This [indiscernible] out of $100,000 is based on a fiscal year, not calendar year.
>> correct.
>> so if we're looking at all this getting done I guess six months from now, we anticipate bringing that person on to help with this in six months or will we try to do that sooner?
>> well, as Commissioner Sonleitner said, we need one person now. We've already started implementing some of the things that colette asked us to do like start tracking non-hub subs and it's very labor intensive. So we need additional person now and I predict we will need at least one, maybe two other additional staff in the future once we start implementing. It also have workload issues for all the buyer staff especially in the construction area will be having to go and look at who all's good faith efforts. There will be a lot more effort. So I would say if we get the study information back in six months from this study, then in another six months we'll be ready and should have all our documents completed and staff trained up, and so I would say a year from now we should be implementing the results of this study and the plan. That would be our desire, a year from now to say these are the things we've been doing the last couple of months and this is where we're at.
>> are we convinced that if we do this and implement a new plan, that we need to keep doing everything we have been doing in the hub office [indiscernible]?
>> yes, I believe we continue to do outreach and one of the things that's been very beneficial is have sylvia and betty attend pre-bid k-frpbgsz for all the construction projects where they can meet face to face with the contractors, give out the names of subs, make those connections. So there's a lot of work that's going to be required to implement the plan and to maintain it. We also need to look at a better statistical tracking system for sylvia. She is just spending hours and hours tracking data because she's having to pull it from different places so we're going to need to look at that.
>> I think this would be a good opportunity to look at what we've been doing and see if we add on this disparity study and plan, assuming the study yields the findings that we believe will enable us to implement a plan, then this is the time to look and see what we have been doing that we can stop doing. If we need to do all of it --
>> sylvia, is there anything we are doing currently we would stop doing? We are tracking payments.
>> I think I would like an analysis rather than off the cuff response. If the opbs would be we need to do all of it, I can live with that. But I think we ought to take the opportunity to look at it.
>> we've been looking at it, judge.
>> you will need the purchasing department to help out. What other county departments do you need help from to make this --
>> well, it will depend on where the data needs to come from. I'm not sure where it's kept at the county, but certainly from the purchasing department and some of the important information will be that the consultants will need to gather is, frankly, where you are spending your money, what types of projects. Those will be coded. And then how much, with which general contractors, with which subcontractors and that type of information. So there may be some data that needs to come from the equivalent of your public works department.
>> at some point we need to let those departments know that we would like to get them to support this effort, if we do it.
>> right. Correct.
>> so I mean the city needs to do this anyway, I take it, based on the supreme court decision of a year ago. But the city's studly not involve county history.
>> yes, sir, that's correct.
>> and we need the county history for to us have a study that we can rely on is what I'm taking.
>> that's right.
>> who were the partners in the first generation disparity study?
>> that was the city of Austin and capital metro.
>> cap metro?
>> yes, sir.
>> we did have an advisory committee working with us and what's their recommendation?
>> I'm sorry, judge.
>> what's the advisory committee's recommendation?
>> they are in favor of doing the disparity study.
>> who are they? Who are the members of the advisory?
>> the -- first of all, the committee was created in July and we've met several months now and the committee is the Austin black contractors, the hispanic contractors, the Austin minority trade association. There's a.g.c. U.t. Has a bonding component. Their representative is on the committee. So there's several individuals. And the agent contractors.
>> so we have several specific results that we anticipate. One, of course, is with a valid study, whatever plan we adopt based out would be legally supportable. The other thing is for us to try beef up the effort to increase the number of hub participants in the construction area specifically.
>> uh-huh.
>> because we do a whole lot of -- we do a whole lot better in some of the other areas, but not so well in construction. But a lot of ideas are driven by the number of hub contractors in the area. And the third thing is that our goal would be to improve the results. To give more hub firms an opportunity to, in fact, contract with the county.
>> yes, sir.
>> so there's the effort, there's the legality, then there's improving the results.
>> yes, sir. There's -- I mean to have more realistic goals, we have a 30% goal was based on something 10 years ago. And I think an enforcement mechanism is probably one of the main reasons for the study which will help us to not take away but continue to add initiatives that we need to improve our program.
>> okay. Anything further of these five -- I would have three or four questions in executive session.
>> one other technical question. Can somebody tell me what the shelf life is of a new disparity study? Obviously we know 10 years is too long.
>> the shelf life depends on the development of the injure eus prudence around it and so if you have a study, for example, that a month later is upheld by the supreme court of the united states, let's just say, then that would have long shelf life. If you have a study based on certain methodology and six months later a court rules that's not the right one, it has a very short life. It depends on the way the cases unfold.
>> hopefully we will have something that will have some kind of a shelf life so in my mind that cost of $100,000 I can divide it up by whoever many years, hopefully it's going to be at least five. I find that to be a very small but worthwhile investment that will trigger many good things to come.
>> let me just thank you for your hard work, and I know it's been some trying moments, but something that's very much needed and worth while as we try to resolve some disparity that's just about as real as anything. And I just want to thank you all for all the work that you are doing. I really appreciate what you are doing.
>> thank you, Commissioner.
>> p.b.o. Identified $52,265 in existing resources, it says, in purchasing office.
>> that was a frozen position for a buyer slot. I had not totally agreed with travis, but I'm okay with it. I think our workload is such that we could use that position in the hub office and I would ask the court to let me go ahead and start interviewing for that position now, work with p.b.o., And then supplement my current budget with additional positions so that those will be earmarked, perhaps earmarked further on into next fiscal year if we need additional help.
>> my question was about to be whether that money is still available.
>> well, that funding would be available October 1. The funding the slot. So in a sense the money was removed from this year's budget, added back to the f.y. Twao euf target and would be available for that position October 1.
>> so you all are in agreement on that.
>> yes, i'll agree to that.
>> that leaves us looking for, roughly, 50,000 or more?
>> I guess the only thing remaining would be 100,000. I assumed that we could make those payments in f.y. '05 and '06. That's how I read it. I'm not sure if maybe --
>> let's find that out for sure.
>> okay.
>> and I guess we need to know about it this afternoon.
>> yes.
>> well, are you going to authorize us to tell the city we have $100,000 to participate in this study even if additional partners --
>> it depends on the vote of this court this afternoon.
>> if we know that we're going to stick to the $100,000, I think we can go ahead and start working on the interlocal agreement and negotiate we can pay that in '05 and '06.
>> I hear mr. Williams say by Thursday of next week it would help the city to know whether the county is participating or not.
>> that's correct.
>> my point is if the answer to my question about the two years is based on two calendar years, we would have to know that before this afternoon before we take action. Fiscal years.
>> and the dollar amount would be important too, judge, I would think.
>> but our fee of $100,000 is based on the fact that there are other partners. If there are no other partners, then that amount is going to go up.
>> yes, it would.
>> we need to make sure we know what figure we're looking at.
>> Commissioner Sonleitner had a good pointed. The city's volume of purchases and dollar volume is greater than ours so I'm not sure it should be split by two or three-aoe.
>> even if it's done by three, it's 166,000. It is going up, but it would not be going up humongous amount. I think it's an important question are we talking about this fiscal year which anything would come out of reserves, which is not pleasant and I think it would be equally not pleasant for the city of Austin, or we get a whole different pot of money when it comes to October 1 the money is there. We have structured many, many a contract to take advantage of new money so we can properly plan as opposed to find the money when we've already allocated our resources and we are well down the path of of this fiscal year being closed out.
>> just maybe keep your fingers crossed, maybe lcra, aisd and also the a.c.c. May want to join us in this venture.
>> anything further on this stomach? Then we'll take -- item? We'll take it up in executive session if you get that information to me. Thank you very much. Appreciate it.
>> thank you.
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Last Modified:
Friday, October 28, 2005 12:37 PM