Gender, race disparity study flawed, Waste Authority told
Report had advised agency to restart set-aside program.
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. The race and gender disEleanor Ramsey, Mason parity study conducted for Tillman’s president and chief t h e P a l m B e a c h C o u n t y executive officer, described Sol i d Waste Author i t y i s La Noue as “an unapologetic “too flawed” for its recomopponent” of set-aside promendations to meet federal grams, frequently referred legal standards, according to to as minority/women busia review of the study conness enterprise programs. duc ted for a contrac tors L a Noue h a s b e e n t h e group. expert witness for “more
That study, and the SWA than 28” of Associated Genauthority’s response to it, eral Contractors (AGC) of could be up for discussion America’s legal challenges to today, when county commisset-aside programs in Florsioners — acting as the SWA’s ida and nationwide, she said. governing board — choose a Women and minority businew chairman. ness owners in Palm Beach
Commissioner Mack BerCount y have complained nard, the governing board’s that they haven’t gotten a vice chairman, is in line to fair shot at authority conbecome its chairman. He tracts and want the SWA to has been critical of what he re-establish a race- and gendescribes as an inapproprider-based program before ate and slow response to a the hauling contracts are study that found womenawarded. and minority-owned firms Set-aside programs have have not been given a fair frequently been challenged shot at SWA contrac ts in in court, and, after challengrecent years. ers won a landmark U.S.
The authors of that study, Supreme Court decision in Mason Tillman Associates of the Richmond v. Croson case California, recommended of 1989, governments have that the SWA re-establish a had to demonstrate a clear race- and gender-based setpattern of disparate treataside program to give women ment to have a legally jusand minority business owntifiable program. Governers a better shot at winning ments typically pay for disauthority contracts. parity studies like the one
The methodology of that conducted by Mason Tillstudy was affirmed by a sepman to show a proposed setarate consultant, Franklin aside program is justified. Lee, a Maryland attorney Michelle Anaya DePotter, who specializes in adminchief executive officer of the istrative and regulatory law. Florida East Coast Chap
In addition to Lee’s review, ter of AGC, wrote commisthe SWA hired a third consioners on Monday, telling sultant, George La Noue, a them that a lawyer it hired political science professor to review the study found it who has frequently testified “too flawed to meet Croson.” in cases challenging dispar“For the race-conscious ity studies and set-aside prorecommendations suggested grams, to provide the authorby Mason Tillman (and opinity with feedback as Mason ioned by M. Lee) to be conTillman conducted its study. stitutional, the standards
Critics of the authorit y, of Croson must be met,” DePotter wrote. “We urge your immediate review of the att ached ‘Analysi s of The Solid Waste Authority of Palm Beach County, Florida Disparit y Study Final Report,’ which has crippling flaws.”
AGC’s review was conduc ted by John Sullivan, an attorney from Baltimore who, like La Noue, has frequentlyt and testified against set-aside programs.
In reviewing Mason Tillman’s work, Sullivan said t h e c o n s u l t a n t f a i l e d t o 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 i mpartial l e gal objec t ive 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 Author- it y, which oversees rec ycling 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 t hat he o r hi s s t a f f 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 direct o r a n d manage ment t o deceive the public and to not provide equal opportunity to blacks, Hispanics and women,” said Bernard, the only minorit y 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 i n c o n t r a c t i n g , ” 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 individu al commissioner does not have the authority to fire Hammond. That would take a majority vote of the seven-member governing board.