Affirmative Action Derailed

With Prop. 209 looming, an airport contract battle shows how S.F. has failed to keep faith with minority business

A seemingly endless stream of federal court challenges to the law is also in play, generally brought by whites alleging reverse discrimination. A half-dozen thus far have been deflected when judges declared that S.F. has acted with due care -- that it has demonstrated clear evidence of discrimination by its own municipal departments, and that its affirmative action remedy has been gradual and "narrowly tailored" to cure the identified social harm. But more are in the pipeline.

Oh, and by the way, all of this is roiling against the backdrop of litigation over state Proposition 209, the voter-approved initiative to end affirmative action in government hiring, contracts, and public school. If allowed to take effect, Prop. 209 would repeal S.F.'s affirmative action programs and other programs in California that seek to redress discriminatory governmental and educational practices.

All in all, the ADtranz-Mitsubishi brawl shapes up as an evolving case study for the affirmative action policy debate that has raged in California from the landmark Bakke reverse-discrimination case to Prop. 209. And many supporters of affirmative action won't like what they see.

On Oct. 3, in the midst of ADtranz's sleuthing around the Mitsubishi bid, 30-year-old Marivic Bamba became S.F.'s new director of the Human Rights Commission (HRC), the city's affirmative action clearinghouse.

Overseen by a group of civilian commissioners, the HRC's job is to certify MWBs as eligible beneficiaries of the affirmative action in contracting ordinance; to work with departments, like the airport, to decide when contracts ought to be set aside for MWBs, and what level of MWB participation should be established for major contracts put out to competitive bid. It also has responsibility for monitoring compliance.

For such a boastfully progressive city, however, S.F. was late to share the wealth of municipal contracts with local businesses owned by blacks, Hispanics, people of Asian descent, and women. By the early 1980s, a majority of S.F. residents were minorities, as were 31 percent of private-sector construction-business owners. Yet these minority-owned businesses got less than 1 percent of city construction spending. The Board of Supervisors only passed a response to the disparity in 1984. Titled the Minority/Women/Local Business Utilization Ordinance, it directs all city departments to take affirmative steps to steer business to independent, local minority- and women-owned business enterprises.

The rationale was written directly into the text: "Policies and programs that enhance the opportunities and entrepreneurial skills of minority owned, women owned, and local businesses will best serve the public interest, because the growth and development of such businesses will have a significant positive impact on the economic health of the city and will serve to reduce racial tension in our community."

Since passage, the old disparities have narrowed. According to the most recent annual report of the S.F. Human Rights Commission, the value of contracts to local MWBs certified to participate in the program reached $92 million in fiscal year 1995, which was 21.5 percent of all contracts awarded to business during the period.

The agency's new director, however, knows that statistics aren't the only measure of success. "Affirmative action can no longer be a sheer numbers game," Bamba said in a recent interview. "It should focus on the viability of its constituency. The causes of being a disadvantaged business person have to be addressed."

To take the S.F. job, Bamba left a similar post as director of contract compliance for the city of Richmond. Earlier, as a private consultant, she had prepared disparity studies, which is a current legal prerequisite before a public entity can grant preferences along racial or gender lines. Think of it as the bureaucratic equivalent of driving pilings before erecting a bridge.

Bamba also got a long peek behind the curtain in S.F. before moving into the director's chair, having in February 1996 become a member of the Human Rights Commission, the mayoral-appointed body that sets policy and oversees the HRC agency staff. In that role, she paid close attention to the MWB program. As a commissioner, she said, "I heard complaints from the community about a lack of enforcement."

As director, she would be in a position to do something about that. Her first big chance came after less than a month on the job. The episode, Bamba said later during public hearing testimony, would be her "baptism by fire."

Informed of the disturbing results of ADtranz's probe into the Mitsubishi airport bid -- self-interested as it was -- the new director moved quickly. Bamba assigned a veteran HRC compliance officer to the case.

The compliance officer, Kevin Williams, wrote Bamba two memos summarizing his findings on Nov. 6. (Coincidentally, it was the same day that S.F.'s civil rights establishment rushed to federal court to block implementation of Prop. 209.) According to the memos, Williams not only supported ADtranz's allegations about the Mitsubishi subcontractors being possible fronts, but he also sounded a wider alarm about shabby HRC procedures. He wrote, "I strongly recommend prompt review of other errant certifications ...[,] establishment of a uniform [certification] process through in-services training[,] and development of a compliance officer's manual to avoid such flagrant error in the future."

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