Affirmative Action Derailed

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

All of which was beginning to throw the city's affirmative action regime into turmoil.

Bamba rebuffed a request from the City Attorney's Office, which represents all city agencies, that she withdraw and amend her findings. Meantime, the HRCdirector inquired about the feasibility of hiring private counsel -- apart from the city attorney -- only to be rebuffed herself by City Attorney Louise Renne. The need for separate lawyers arose because Airport Director Martin rejected Bamba's analysis of the contract, and was recommending that Mitsubishi be awarded the deal. Ultimately, it would be left to the city's five-member Airports Commission to choose a side between Mitsubishi and ADtranz, and, consequently, between the City Attorney's Office and the HRC.

On Dec. 23, the Airports Commission met. The third-floor Public Health Department meeting room filled. Mitsubishi and ADtranz officials were joined by their hired devotees: lawyers, lobbyists, and their would-be subcontractors. Having received divided advice on the $136 million bid, the panel confronted a second split. Like the city's lawyers and bureaucrats, the universe of intended beneficiaries of affirmative action was bifurcated.

African-American business owners -- some of them signed onto the ADtranz bid, others who felt snubbed by Mitsubishi -- chose their perches accordingly. Most notable among them was James Jefferson, a business consultant slated by ADtranz to manage the post-installation train system personnel. Across the room, Mitsubishi's subcontractors in attendance were predominantly Latino and Asian-American.

Black trucker Charlie Walker, the first subcontractor to testify, summed up the African-American complaint: "We are still the last hired and the first fired. We still can't get bonded, and we still can't do any of the jobs." Echoed by others, Walker charged that Mitsubishi had never done "any outreach" to blacks through African-American business associations.

In fact, the racial split was a logical consequence of how Mitsubishi and ADtranz had gone about assembling their teams. For instance, Mitsubishi had turned to Rosendin Electric Inc. of San Jose, a first-tier contractor for Mitsubishi, to put together a team of second-tier subs to meet MWB participation goals. Not unsurprisingly, Rosendin -- a highly successful company that was a Hispanic business at the start -- signed on many Latinos. By contrast, Sanders, whose ADtranz office is in Union City, had called on a minority East Bay transit engineering firm for assistance. The company, called Mindseed Corp., happens to be owned by a native San Franciscan who is black. That person, in turn, recommended Jefferson, who among other things is former president of the S.F. Black Chamber of Commerce.

As the airport commissioners listened, however, the essential question before them was jurisdictional. Their counsel, Deputy City Attorney Mara Rosales, had delivered a crucial piece of legal advice behind closed doors before the hearing. It would be the same position she'd set forth fewer than six weeks later in Superior Court to a skeptical Judge Cahill.

It was simple. Rosales cited the city charter -- the supreme law of municipal affairs -- as giving the Airports Commission absolute authority to decide if a bid met all contractual requirements, including whether the certified MWBs were in fact bona fide for purposes of any particular project at hand. The charter states that the commission: "shall have charge of the construction, management, supervision, maintenance, extension, operation, use and control of all [airport] property, as well as the real, personal and financial assets."

Which, in Rosales' view, means the commission is authorized to award contracts to whom it pleases for work it pleases, a power limited only in one regard: The S.F. Administrative Code requires awards to the "lowest, reliable, responsible and responsive bidder." And that, technically, was the question before the commission Dec. 23. As for the authority of the HRC director, her conclusions about Mitsubishi's bid weren't binding, Rosales said. The HRC certifies companies as local MWBs, but it was the Airports Commission's call as to whether the bidder used certified MWBs appropriately.

The commission voted 3-2 in favor of Mitsubishi. And, although Rosales knew she would be back in court defending it, she didn't expect trouble. She had defended the city MWB ordinance on a half-dozen occasions in federal court, and had a perfect record.

But this was a different kettle of fish. It was not a constitutional attack on the legality of the ordinance. This was about what happens in S.F. when the rubber meets the rails.

Come Jan. 30, it was left to Judge Cahill to make sense of the mess. ADtranz had sued, challenging the city attorney's opinion to the Airport Commission -- that it was free to ignore the conclusions of the HRCdirector.

HRC Director Marivic Bamba was the court's most conspicuous figure by virtue of her absence. Cahill not only wanted her absence explained, but he went out of his way to praise Bamba's willingness to go the extra mile on scrutinizing subcontractors: "She's actually choosing to go out and see." The clear implication of the exchange that would follow was that Bamba was being kept out of sight by the City Attorney's Office, which considers itself the arbiter in contracting works in S.F.

"I kind of wonder who the client is here?" Cahill asked Rosales. Rosales assured the judge that she represented both the airport and the HRC, indeed the city as a whole, and that no conflict existed. (To her right sat another deputy city attorney, a private lawyer specialist in contract law hired by the airport, and Jonathan Bass, of the Coblentz firm, the counsel for Mitsubishi. To her left: ADtranz's team.)

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