HomeMy WebLinkAboutResolution No. 4250, Anti-Discrimination Policy for Contracts and Other Agreements and Purchases.pdf
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
Chris Kukulski, City Manager
SUBJECT: Resolution 4250: Anti-Discrimination Policy for Contracts and Other Agreements
and Purchases
MEETING DATE: March 29, 2010
AGENDA ITEM TYPE: Action
RECOMMENDATION: Consider Resolution 4250, accept public comment, and move to adopt.
BACKGROUND: On January 11, 2010, the City Commission moved to: “Direct staff to develop
policies and implementation strategies to prohibit discrimination in City employment, benefits and
programs and services on the basis of sexual orientation and/or gender identity". The motion was
subsequently amended “to explicitly refer to the staff memo [from January 11, 2010] on page 7 starting
with Human Resources/Employment Policy Statements, employee benefits, and contracts.” On February
8, 2010, you adopted Resolution 4243 fulfilling this objective.
The Commission also expressed interest in developing similar policies related to contracts and other
agreements. As such, on February 8th, you had a lengthy discussion regarding adoption of a similar
policy as it relates to contracts and other agreements. The staff report from February 8th is attached for
your reference. Out of that discussion you requested staff return to you with revisions to the proposed
“strict” contracting policy that addressed the following policy issues:
· The Commission was not supportive of including general licenses issued by the City such as pet
or business licenses;
· The Commission was not interested in establishing a monetary threshold such as $20,000 or
$50,000 that would trigger the discrimination policy;
· The Commission wanted to ensure the policy did not apply to other entities when the City
provides services to them, such as garbage or recycling;
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· The Commission was interested in ensuring sexual orientation and gender identity would be
added to agreements wherein federal and/or state law required a specific discrimination clause
but the required state or federal boilerplate provision did not contain those categories; and
· The Commission was interested in making sure this policy did not apply when the City made
minor every day type purchases such as gasoline or office supplies.
Based on the discussion from February 8th and the points cited above, staff drafted the policy attached as
Resolution 4250. The highlights of the policy as included in the Resolution are as follows:
· The policy requires “All written agreements including but not limited to collective bargaining
agreements, contracts, and leases, entered into by the City, including agreements for professional
services and sole source services, shall include a provision prohibiting discrimination in the
fulfillment of the agreement on the basis of race, color, religion, creed, sex, age, marital status,
national origin, or actual or perceived sexual orientation, gender identity or disability.”
· The policy requires this prohibition to apply to the contracting entities hiring and treatment of
their own employees.
· The policy requires a contracting entity to ensure this policy applies to all subcontracts it enters
into in fulfillment of the contract with the City.
· The policy applies to the purchase of goods where the City enters into a written agreement for
the purchase other than a standard purchase order.
· The policy requires staff to include in all requests for proposals (RFP), requests for
qualifications (RFQ) and all other notices soliciting bids for construction, services, or any other
contract to include a provision requiring every submitting entity to affirm it will not discriminate
on the basis of the categories described in the policy.
· The policy also requires those submitting bids in response to notices to specifically affirm in its
submittal that it recognizes the eventual contract will contain a clause prohibiting discrimination.
· If an entity submitting a bid on a project does not affirm in its submittal that it will comply with
this requirement, the policy states the City shall consider the submitter non-responsive.
· The policy also requires agreements for the expenditure of public funds which are required by
federal and/or state law to include a specific anti-discrimination requirement that does not
contain any of the categories listed in the City’s policy (e.g. sexual orientation and gender
identity) to include such a provision.
· The policy does not apply to general licenses such as business or pet licenses nor shall it apply to
general or special permits or entitlements issued by the City.
· The policy does not apply when the City enters into agreements to provide services to another,
such as garbage or recycling services,
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We recommend the Commission include a specific statement indicating exceptions to this policy could
be made by the Commission on a case-by-case basis. This will help to ensure this policy can be dynamic
in its application yet the final decision for an exception will be made exclusively by the Commission. At
this time, we recommend you refrain from establishing any set criteria for how those exceptions are to
be made in favor of your broad contracting authority.
Finally, we recognize this policy will require a certain level of initial administrative oversight to ensure
all Staff that develop, process, and oversee agreements and purchases subject to this policy undergo
training. We will also need to develop templates the staff can use in their daily work. As such, we
included in the Resolution specific authorization for the City Manager to implement this policy through
administrative policies or a formal administrative order.
FISCAL EFFECTS: At this point it is not possible to determine the specific fiscal impacts of
establishing these polices. As stated to you on February 8th, the challenges regarding incorporating a
discrimination provision in all City contracts are also difficult to anticipate. Additional staff time will
certainly be required to implement this policy and ensure each agreement and purchase subject to the
policy contains the required statement(s) on discrimination. In addition, there will be staff time required
to track all RFPs and RFQs to ensure the notices and the submittals contain the required documents.
However, the additional time required of staff to implement this policy will not, over the long term, be
significant and will be minimized as city employees and our contracting partners become familiar with
these requirements. Finally, it is important to note that until the policy is fully implemented it is nothing
more than speculative whether any particular vendor or entity will reject doing business with the city
because of the policy.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Resolution 4250
Staff Memo: February 8, 2010
Report compiled on: March 24, 2010
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Resolution 4250: Policy Prohibiting Discrimination in Contracting and Other Agreements
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COMMISSION RESOLUTION NO. 4250
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, ADOPTING A POLICY PROHIBITING DISCRIMINATION IN THE
ENTERING INTO AND IMPLEMENTATION OF CONTRACTS AND AGREEMENTS
OF ALL KINDS INCLUDING BIDDING AND CERTAIN PURCHASES.
WHEREAS, The City of Bozeman is a self-governing municipal corporation organized
under the laws of the State of Montana and governed by a Charter, which was effective January
1, 2008; and
WHEREAS, In November, 2009, the City of Bozeman passed and adopted Commission
Resolution Number 4217 declaring "All are welcome here,” and committing to: 1) support the
diversity of the community; 2) promote inclusiveness in our public endeavors and private
actions; and 3) work to end silence and stop the spread of hate, and in so doing build just and
caring communities, congregations, workplaces, schools and homes; and
WHEREAS, on February 8, 2010, the Commission adopted Resolution 4243
establishing policies for discrimination in employment and benefits on the basis of sexual
orientation and/or gender identity, among other protected categories; and
WHEREAS, on February 8, 2010 the Commission discussed options for applying similar
policies to those contained in Resolution 4243 to a variety of agreements and purchases the city
undertakes and directed the city staff to prepare a final proposal for ensuring the city and its
contracting partners do not discriminate on the basis of a variety of categories related to
individuals; and
WHEREAS, the Commission finds that creation of these policies will serve the public
interest by ensuring the City of Bozeman does not discriminate on the basis of race, color,
religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation,
gender identity or disability; and
WHEREAS, the Commission recognizes circumstances may arise in the implementation
of this policy that will warrant special exceptions; as such, the Commission reserves for itself the
determination of when an exception to the policy described below may be made; and
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Resolution 4250: Policy Prohibiting Discrimination in Contracting and Other Agreements
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WHEREAS, the Commission requests the City Manager implement this policy through
administrative policies or through a formal administrative order so that this policy will be
distributed to all City personnel and implemented expeditiously upon adoption.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, that the following policy related to discrimination in City contracts and
other agreements is hereby adopted:
Section 1: Policy for Discrimination in City Agreements
All written agreements including but not limited to collective bargaining agreements,
contracts, and leases, entered into by the City, including agreements for professional
services and sole source services, shall include a provision prohibiting discrimination in
the fulfillment of the agreement on the basis of race, color, religion, creed, sex, age, marital
status, national origin, or actual or perceived sexual orientation, gender identity or
disability. The provision shall clearly indicate that the contracting entity or individual will
ensure this obligation pertains to the hiring and treatment of the contractor's employees and
to all subcontracts.
The above requirement shall apply to all purchases of goods and equipment only where the
City enters into a signed written agreement, other than a purchase order or receipt, for the
purchase.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices
soliciting bids for construction, services, or any other contracted service, shall include a
provision requiring every submitting entity to affirm it will not discriminate as described
herein and recognize the eventual contract will prohibit discrimination as described herein.
If an entity submitting a bid on a project does not affirm in its submittal that it will comply
with this requirement, the City shall consider the submitter non-responsive.
Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City, such as a federal or state requirement,
must include the discrimination provision required by the federal or state law, as
appropriate. If the federal or state requirement does not include a discrimination category
listed herein such as sexual orientation or gender identity the agreement must be amended
or an addendum executed to include the missing category.
The above requirement does not apply to the City’s issuance of general licenses such as
business or pet licenses nor shall it apply to general or special permits or entitlements
issued by the City. In addition, these requirements do not apply when the City enters into
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Resolution 4250: Policy Prohibiting Discrimination in Contracting and Other Agreements
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agreements to provide services such as garbage or recycling services, to another entity or
individual.
Section 2: Exceptions to be Made by Commission
Exceptions to this policy may be made by the City Commission on a case-by-case basis.
Section 3: Implementation by City Manager
The City Manager shall implement this policy through administrative policies or through
administrative order.
Dated this 29th day of March, 2010.
____________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
____________________________________
GREG SULLIVAN
City Attorney
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Commission Memorandum
REPORT TO: Bozeman City Commission
FROM: Chris Kukulski, City Manager
Patricia J. Berg, Human Resources Director
Greg Sullivan, City Attorney
SUBJECT: Resolution #4243: Protection from Discrimination Based on Actual or
Perceived Sexual Orientation and Gender Identity in Employment and
Benefits.
MEETING DATE: February 8, 2010
AGENDA ITEM TYPE: Action
RECOMMENDATION: We recommend you:
1. Consider the proposed Resolution 4243 (Attachment A) relating to the development of policies
and implementation strategies to address discrimination, including discrimination on the basis
of sexual orientation and gender identity and, if desired, move to adopt.
2. Consider a motion to direct other quasi-independent City boards, such as the Library Board
and Parking Commission, and the Business Improvement Districts to adopt these policies.
BACKGROUND: On January 11, 2010, the City Commission moved to: “Direct staff to
develop policies and implementation strategies to prohibit discrimination in City employment,
benefits and programs and services on the basis of sexual orientation and/or gender identity". The
motion was subsequently amended “to explicitly refer to the staff memo [from January 11, 2010]
on page 7 starting with Human Resources/Employment Policy Statements, employee benefits, and
contracts.” Staff drafted proposed Resolution 4243 for your consideration to fulfill this direction.
For background material on this issue, please refer to the Commission Memorandum from January
11, 2010 which is included as Attachment B.
Introduction to Resolution 4243: As proposed, Resolution 4243:
1. Integrates sexual orientation and gender identity into the existing categories for which
discrimination is currently prohibited;
2. Includes definitions of the terms "gender identity" and "sexual orientation";
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3. Prohibits the City of Bozeman from discriminating in employment based on actual or
perceived sexual orientation or gender identity. This protection applies to all the City's
employment actions which may include but are not limited to hiring, promotion, demotion,
selection for training, and in the provision of benefits;
4. Expands the City's anti-harassment training program to include the prohibition of
discrimination on the basis of actual or perceived sexual orientation or gender identity;
5. Requires the City to conduct an audit to ensure all those currently covered by the City's health
insurance program are eligible under the most recent program documents provided by the
Montana Municipal Interlocal Authority (MMIA); and
6. Requires staff to research the feasibility, costs and tax consequences of providing COBRA-
type benefits to domestic partners and report back to the Commission before the open
enrollment period of May/June 2010.
Contracts: We recognize your motion from January 11, 2010 included specific direction to provide you
with a policy statement and implementation strategies for ensuring the City does not discriminate on the
basis of sexual orientation and gender identity in contracting. During the process of developing these
policies and strategies we recognized several challenges to adopting such policies. As such, we have not
included policies and strategies related to contracts in Resolution 4243. Instead, we provide the
following discussion as background and ask you provide more specific direction regarding how to
ensure the City does not discriminate in contracting.
As you consider the following options, please consider whether any distinction should be made between
purchasing and contracting.
Over the past month we have discussed this approach and feel there are several approaches you could
take to fulfill the January 11th motion. As such, we provide options that range for "strict" compliance to
"best efforts." The options are discussed here:
Option A (Strict): "All City collective bargaining agreements, contracts, leases, licenses, and
other agreements of every kind, including agreements for professional services and sole source
services, shall include a provision prohibiting discrimination in the fulfillment of the agreement on
the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or
perceived sexual orientation, gender identity or disability. The provision shall clearly indicate that
the contracting entity will ensure this obligation pertains to the hiring and treatment of the
contractor's employees, to the contractor's purchasing of materials and equipment related to the
contract, and to all subcontracts. The above requirement shall apply to all purchases of goods
regardless of amount wherein the City enters into a written agreement for the purchase.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices soliciting
bids for construction, services, or any other contract shall include a provision requiring every
submitting entity to affirm it will not discriminate as described above and recognizing the eventual
contract will prohibit discrimination as described above. If an entity submitting a bid on a project
does not affirm in its submittal that it will comply with this requirement, the City shall consider
the submitter non-responsive.
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Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City must include the discrimination provision
required by the federal or state law, as appropriate."
Analysis of Option A:
This option requires all City contracts and agreements to contain a provision prohibiting
discrimination in the exercise of the contract. This option also requires the contractor to ensure the
contractor will not discriminate in the hiring of its employees and in the purchasing of goods
related to the contract. Furthermore, this option would require the contractor to ensure all
subcontracts it enters into would contain the same provision.
Option A also addresses Requests for Proposals (RFP) and Requests for Qualifications (RFQ) and
requires all those submitting bids to affirm they will not discriminate and recognize the eventual
contract will contain provisions as described above or else the City will consider the submittal
non-responsive.
Finally, Option A contains a provision indicating that where state or federal law requires a specific
discrimination provision that provision must be included in the contract rather than the City's
provision.
While Option A provides the greatest assurance that the expenditure of City tax dollars will not
result in discrimination, this option could result in several challenges. First, Option A will result in
increased staff time at the letting of contracts because the City enters into many "boilerplate" type
contracts, especially for general services such as repair and maintenance of office equipment. The
result is that service agreement would need to be altered by the City at the time they are entered
into. Certainly, this challenge can be overcome through prior planning and organization.
Second, Option A may result in some contractors deciding to no longer do business with the City
of Bozeman whether because they disagree with the policy or they are not able to ensure they have
controls in place to ensure discrimination does not occur. Currently, we have no direct evidence
this may occur but is certainly a possibility. Related is the challenge that Option A may result in
increased costs to the City if contractors wish to continue to do business with the City but
determine they must put in place controls to ensure discrimination does not occur.
Finally, Option A may require the City to increase its oversight of contracts including the general
business practices of contractors. At this time, the City's oversight of a contract does not generally
include inquiry into performance of the contractor's business operations. Incorporating a strict
standard such as Option A may result in such an inquiry. However, it must be noted this inquiry
would only occur should the City obtain credible evidence that discrimination has occurred. The
remedies the City would take if discrimination was occurring would be based on the specific
circumstances and are difficult to anticipate.
Option B (Best efforts to enter into contract): "All City departments shall use their best efforts
to ensure all collective bargaining agreements, contracts, leases, licenses, and other agreements of
every kind, including agreements for professional services and sole source services, include a
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provision prohibiting discrimination in the fulfillment of the agreement on the basis of race, color,
religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation,
gender identity or disability. If possible, the agreement should indicate the contracting entity must
ensure this obligation pertains to the hiring and treatment of the contractor's employees, to the
contractor's purchasing of materials and equipment related to the contract, and to all subcontracts.
All City departments shall use best efforts to ensure the above requirement applies to all purchases
of goods regardless of amount wherein the City enters into a written agreement for the purchase.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices soliciting
bids for construction, services, or any other contract shall include a provision informing every
submitting entity the City will use its best efforts to ensure the selected entity will not discriminate
as described above and recognizing that the City will use its best efforts to ensure the eventual
contract will prohibit discrimination as described above.
Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City must include the discrimination provision required
by the federal or state law, as appropriate."
Analysis of Option B:
This option takes a different approach that recognizes the above described challenges to Option A.
The language of this approach is almost identical to that of Option A but requires City departments
to use "best efforts" when entering into agreements to ensure those agreements contain the required
discrimination provision. "Best efforts" means "diligent attempts to carry out an obligation. As a
standard, a best efforts obligation is stronger than a good-faith obligation." Black's Law
Dictionary, 7th Ed. West Publishing. Thus, City staff must enter into discussions with potential
contractors to include the required discrimination provisions. If the desired contractor refuses, the
staff should decline to engage the contractor unless no other contractor is available to do the work
at the budgeted for price. This option includes a best efforts provision for lettering RFP and RFQs.
Like Option A, this option has its challenges. First and most obvious, this option does not require
the discrimination provision be included in every agreement. Second, as with Option A, this option
requires staff to spend additional time negotiating, if necessary, with contractors to include the
discrimination provisions.
Obviously, this option would allow the City to continue to work with a contractor if the contractor
refused to adopt the provision and that contractor, considering all other qualifications, was still the
desired contractor.
As with Option A, if the provision is adopted the challenge of ensuring adequate oversight would
exist the same as described above under Option A.
Option C (Best efforts for contracts over $50,000). "All City departments shall use their best
efforts to ensure all collective bargaining agreements, contracts, leases, licenses, and other
agreements of every kind, including agreements for professional services and sole source services,
that exceed $50,000 ($20,000 for architectural, engineering, or surveying services) include a
provision prohibiting discrimination in the fulfillment of the agreement on the basis of race, color,
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religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation,
gender identity or disability. If possible, the agreement should indicate the contracting entity must
ensure this obligation pertains to the hiring and treatment of the contractor's employees, to the
contractor's purchasing of materials and equipment related to the contract, and to all subcontracts.
All City departments shall use best efforts to ensure the above requirement applies to the purchase
of goods that, in the aggregate from a single vendor in a fiscal year, exceed $50,000.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices soliciting
bids for construction, services, or any other contract shall include a provision informing every
submitting entity the City will use its best efforts to ensure the selected entity will not discriminate
as described above and recognizing that the City will use its best efforts to ensure the eventual
contract will prohibit discrimination as described above.
Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City must include the discrimination provision required
by the federal or state law, as appropriate."
Analysis of Option C:
This option is almost identical to that of Option B except that the requirement to use best efforts to
include a provision would apply only to certain agreements over $50,000 or $20,000 as
appropriate.
The above three options are intended to provide a framework and starting point for the development of a
detailed policy. Staff will be available to assist in your deliberations regarding contracting on Monday
evening.
FISCAL EFFECTS: At this point it is not possible to determine the specific fiscal impacts of
establishing these polices. We do, however, believe many of the strategies incorporated in the
Resolution will have minimal fiscal impact, if any. These include incorporating sexual orientation and
gender identity into the City's anti-discrimination provisions as well as into the City's hiring practices.
It is reasonable to assume, however, that additional costs may be incurred in conducting an audit of the
enrollment in the health benefits program. If MMIA agrees to conduct the audit the costs to the City will
be minimal. If the City conducts a self-audit, it will do so with City staff if possible.
As for group health insurance, it is unclear at this time whether additional employees will request
domestic partners be covered. If so, the costs of covering domestic partners would be treated the same as
adding any dependent.
As stated above, the challenges regarding incorporating a discrimination provision in all City contracts
are also difficult to anticipate. As you provide more specific direction on contracts and purchasing we
will be able to more clearly identify the fiscal impacts.
ALTERNATIVES: As suggested by the City Commission.
Attachments:
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Attachment A: Resolution 4243;
Attachment B: Commission Memorandum for January 11, 2010
Report compiled on: February 4, 2010.
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