Minnesota Session Laws - 1988, Regular Session

  

                         Laws of Minnesota 1988 

                        CHAPTER 680-H.F.No. 2596 
           An act relating to metropolitan government; 
          prescribing the contents of affirmative action plans 
          for metropolitan agencies and a process for approval 
          and reporting of those plans; requiring purchases from 
          businesses owned by socially or economically 
          disadvantaged persons; requiring certain contractors 
          to have affirmative action plans; amending Minnesota 
          Statutes 1986, sections 473.141, subdivision 9; and 
          473.406, subdivisions 2, 5, 6, and 7; proposing coding 
          for new law in Minnesota Statutes, chapters 3 and 473. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 473.141, 
subdivision 9, is amended to read:  
    Subd. 9.  [PERSONNEL CODE; MERIT SYSTEM.] (a) The council 
shall by resolution adopt guidelines for a personnel code 
relating to the employees of the commissions, except that 
nothing in Laws 1974, Chapter 422 shall impair the rights of any 
commission or employee under sections 473.405 and 473.415.  
After adoption of the guidelines, each commission shall by 
resolution adopt a personnel code in general conformance 
therewith.  The code shall include a job classification plan, 
procedures for employment and promotion of personnel based on 
merit, procedures for the demotion, suspension or discharge of 
employees, procedures for hearing grievances, procedures for 
salary administration, and such other provisions as the council 
deems appropriate.  In addition, the code shall provide for the 
development by each commission of affirmative action plans, 
which shall be submitted for approval to the appropriate agency 
or office of the state.  The plans shall include a yearly 
progress report to the agency or office as provided in section 3.
The chief administrator of each commission shall administer the 
code, and no commission shall take any action inconsistent with 
the personnel code. 
    (b) All employees of the commission except those expressly 
designated for the unclassified service, shall serve in the 
classified service.  The unclassified service shall include:  
members of the commission, the chief administrator of the 
commission, all officers of the commission, any employee of the 
commission who is determined by the commission to have a 
confidential relationship to the commission or the council; and 
any employee of the commission expressly exempted from the 
classified service by law.  Each code shall also include 
procedures for open competitive examinations to test the 
relative skill or ability of all applicants for positions in the 
classified service.  Such examinations may consist of written or 
oral tests of the subjective or objective type, physical tests, 
and practical or demonstration tests for the evaluation of past 
training and experience.  Oral tests may be used to test the 
applicant's knowledge of the position applied for or personal 
fitness for the position.  Where there is more than one 
applicant for a position, each code shall provide for the 
employment of one of the three applicants best qualified for it. 
    (c) When a commission employee has been demoted, suspended 
or dismissed by the chief administrator, the employee may, 
within 30 days after such action becomes effective, file with 
the commission a written request for a hearing showing the 
position from which the employee was dismissed, the date of 
dismissal, and the reason for requesting the hearing, full name 
and present mailing address.  Upon receipt of a request for a 
hearing the commission shall appoint three of its members to act 
as an appeal committee and preside at a hearing on the action of 
the administrator.  The hearing shall be held within 30 days 
after the request is received by the commission, upon written 
notice mailed or delivered to the employee at the employee's 
present mailing address, not less than seven days before the 
hearing.  The appeal committee shall approve or disapprove the 
action of the administrator, and in the case of approval the 
action of the administrator shall be final.  In the case of 
disapproval the appeal committee may reinstate the employee 
under such conditions as it deems proper, and may order the 
payment to the employee of compensation lost as a result of the 
demotion, suspension or dismissal. 
    Sec. 2.  [473.142] [SOCIALLY AND ECONOMICALLY DISADVANTAGED 
BUSINESSES.] 
    (a) The metropolitan council and agencies specified in 
section 3, subdivision 1, shall attempt to award at least nine 
percent of the value of all procurement, other than contracts 
under clause (c), to businesses owned and operated by socially 
or economically disadvantaged persons.  For purposes of this 
section, "socially or economically disadvantaged person" means a 
person who has been deprived of the opportunity to develop and 
maintain a competitive position in the economy because of social 
or economic conditions.  This disadvantage may arise from 
cultural, social or economic circumstances, background, or other 
similar cause.  It includes racial minorities, women, persons 
with a disability as defined in section 363.01, subdivision 25, 
sheltered workshops, and work activity programs.  To the extent 
practicable, the council and agencies shall attempt to meet this 
goal through procurement from businesses with their principal 
place of business in Minnesota.  In furtherance of this goal, 
the council or an agency shall set aside a percentage of all 
procurements for bidding only by these businesses.  The council 
or an agency may also award a five percent preference to these 
businesses in the amount bid on selected procurements. 
    (b) The council and each agency specified in section 3, 
subdivision 1, as a condition of awarding procurements for 
construction, consultant, professional, or technical service 
contracts in excess of $200,000, shall attempt to assure that at 
least ten percent of the contract award to a prime contractor be 
subcontracted to a business owned and operated by a socially or 
economically disadvantaged person, or that at least ten percent 
of the contract award be expended in purchasing materials or 
supplies from this type of business.  This paragraph does not 
apply if the council or agency determines that there is no 
business owned and operated by a socially or economically 
disadvantaged person able to perform the subcontract or provide 
the supplies, or if the prime contractor is a business owned and 
operated by a socially or economically disadvantaged person. 
Subcontracting or purchasing of supplies under this subdivision 
is not included in determining achievement of goals under 
paragraph (a) or (c). 
    (c) The council and each agency specified in section 3, 
subdivision 1, shall attempt to award at least six percent of 
the value of all procurements for consultant services or 
professional or technical services to businesses owned and 
operated by socially or economically disadvantaged persons. 
    (d) In implementing paragraphs (a) and (c), the council and 
each agency specified in section 3, subdivision 1, shall attempt 
to purchase a variety of goods and services from different 
businesses owned and operated by socially or economically 
disadvantaged persons. 
    (e) The council and each agency may adopt rules to 
implement this section. 
    (f) This section does not apply to procurement financed in 
whole or in part with federal funds if the procurement is 
subject to federal disadvantaged, minority or women business 
enterprise regulations.  The council and each agency shall 
report annually to the legislature on compliance with this 
subdivision.  The reports must include the information specified 
in section 16B.21 that pertains to purchasing from businesses 
owned by socially or economically disadvantaged persons. 
    Sec. 3.  [473.143] [AFFIRMATIVE ACTION PLANS.] 
    Subdivision 1.  [APPLICATION.] For purposes of this 
section, "agency" means a metropolitan agency as defined in 
section 473.121, except the metropolitan parks and open space 
commission.  Agency also means the metropolitan mosquito control 
commission.  For purposes of this section, "commissioner" means 
the commissioner of the state department of employee relations.  
    Subd. 2.  [DEVELOPMENT AND CONTENTS.] The council and each 
agency shall develop an affirmative action plan and submit its 
plan to the commissioner for approval.  The commissioner may not 
approve a plan unless the commissioner determines that it will 
be effective in assuring that employment positions are equally 
accessible to all qualified persons, in eliminating the 
underutilization of qualified members of protected groups, in 
providing a supportive work environment to all employees, 
regardless of race, religion, sex, national origin, or 
disability, and in dealing with discrimination complaints.  For 
purposes of this section, "protected group" has the meaning 
given it in section 43A.02, subdivision 33.  A plan must contain 
at least the elements required in this subdivision. 
    (a) It must identify protected groups that are 
underrepresented in the council's or agency's work force. 
    (b) It must designate a person responsible for directing 
and implementing the affirmative action program and assign the 
specific responsibilities and duties of that person.  The person 
responsible for implementing the program shall report directly 
to the council's or agency's chief operating officer regarding 
the person's affirmative action duties.  The person responsible 
for the affirmative action program shall review examination and 
other selection criteria to assure compliance with law.  This 
person shall be involved in the filling of all vacancies in the 
council or agency work force, to the extent necessary to 
facilitate attainment of affirmative action goals.  
    (c) It must describe the methods by which the plan will be 
communicated to employees and to other persons. 
    (d) It must describe methods for recruiting members of 
protected groups.  These methods may include internship 
programs, cooperation with union apprenticeship programs, and 
other steps necessary to expand the number of protected group 
members in applicant pools. 
    (e) It must describe internal procedures in accordance with 
this paragraph for processing complaints of alleged 
discrimination from job applicants and employees.  The 
procedures must provide for an initial determination of whether 
the complaint is properly a discrimination complaint subject to 
the procedure under the affirmative action plan.  Complaints 
filed under the discrimination procedures that allege reprisals 
against an employee for opposing a forbidden practice or for 
filing a charge, testifying, or participating in an 
investigation, proceeding, or hearing relating to a forbidden 
practice are appealable to the chief operating officer of the 
council or agency.  Procedures under this paragraph must be 
distinct from any procedures available under a union contract or 
personnel policy for nondiscrimination complaints.  Use of 
procedures developed under this paragraph is not a prerequisite 
to filing charges with a governmental enforcement agency, nor 
does it limit a person's right to file these charges. 
    (f) It must set goals and timetables to eliminate 
underutilization of members of each protected group in the 
council or agency work force. 
    (g) It must provide a plan for retaining and promoting 
protected group members in the council or agency work force.  
This plan should encourage training opportunities for protected 
group members, to the extent necessary to eliminate 
underutilization in specific parts of the work force.  
    (h) It must describe methods of auditing, evaluating, and 
reporting program success, including a procedure that requires a 
preemployment review of all hiring decisions for occupational 
groups with unmet affirmative action goals. 
    (i) It must provide for training of management and 
supervisory personnel in implementation of the plan and in 
dealing with alleged acts of discrimination in the workplace. 
    (j) It must provide for periodic surveying of the council 
or agency work force to determine employee attitudes toward 
implementation of the plan. 
    (k) It must provide for creation of an employee committee 
to advise on implementation of the plan and on any changes 
needed in the plan. 
    Subd. 3.  [HARASSMENT.] The council and each agency shall 
adopt written policies forbidding harassment based on sex, 
disability, or race in their workplaces and establishing 
implementation plans and grievance procedures to deal with 
complaints of harassment based on sex, disability, or race. 
    Subd. 4.  [PERFORMANCE EVALUATION.] The evaluation of the 
performance of each supervisory and managerial employee of the 
council and the agencies must include evaluation of the person's 
performance in implementing the council's or agency's 
affirmative action plan and in preventing forbidden 
discrimination in the workplace. 
    Subd. 5.  [REPORT.] By March 1 each year, the commissioner 
shall report to the legislature on affirmative action progress 
of the council and of each agency.  The report must include: 
    (1) an audit of the record of the council and each agency 
to determine compliance with affirmative action goals and to 
evaluate overall progress in attainment of overall affirmative 
actions objectives; 
    (2) if the council or any agency has failed to make 
satisfactory progress toward its affirmative action goals, a 
list of unmet goals and an analysis of why the failure occurred; 
    (3) a summary of all personnel actions taken by the council 
and each agency during the past calendar year, categorized by 
occupational group, protected group status, and full-time, 
part-time, temporary, and seasonal status; and 
    (4) a summary of discrimination complaints and lawsuits 
against the council and each agency filed or resolved during the 
past calendar year, including the basis for the complaints and 
lawsuits. 
     For purposes of this subdivision, "personnel action"  means 
a new hire, promotion, transfer, demotion, layoff, recall from 
layoff, suspension with or without pay, letter of reprimand, 
involuntary termination, other disciplinary action, and 
voluntary termination. 
    The council and each agency shall report to the 
commissioner all information that the commissioner requests to 
make the report required by this subdivision.  In providing this 
information, the council and agencies are not required to reveal 
information that is not public data under chapter 13.  
    The council and each agency shall submit these reports at 
the time and in the manner requested by the commissioner.  The 
commissioner shall report to the legislature on the failure of 
the council or an agency to file the required report in a timely 
manner. 
    Subd. 6.  [COORDINATION.] The commissioner or a designee 
shall meet with affirmative action officers of the council and 
all of the agencies to share successful techniques and foster 
innovative means to implement affirmative action plans and 
eliminate discrimination in the workplace. 
    Subd. 7.  [COORDINATION WITH LEGISLATURE.] The council and 
each agency shall facilitate legislative oversight of equal 
opportunity practices by providing the legislature access, 
including access to computerized records if compatible systems 
exist, to public data maintained by the agency.  The council and 
agencies must not provide access to information that is not 
public data as defined in section 13.02, subdivision 8a. 
    Sec. 4.  [473.144] [CERTIFICATES OF COMPLIANCE FOR 
CONTRACTS.] 
    Neither the council nor an agency listed in section 3, 
subdivision 1, may accept any bid or proposal for a contract or 
execute a contract for goods or services in excess of $50,000 
with any business having more than 20 full-time employees in 
Minnesota at any time during the previous 12 months, unless the 
business has an affirmative action plan for the employment of 
minority persons, women, and the disabled that has been approved 
by the commissioner of human rights.  Receipt of a certificate 
of compliance from the commissioner of human rights signifies 
that a business has an approved affirmative action plan.  A 
certificate is valid for two years.  Section 363.073 governs 
revocation of certificates.  The rules adopted by the 
commissioner of human rights under section 363.074 apply to this 
section. 
    Sec. 5.  Minnesota Statutes 1986, section 473.406, 
subdivision 2, is amended to read:  
    Subd. 2.  [SET-ASIDES.] The metropolitan transit commission 
may, on a fiscal year basis, designate and set aside for 
awarding to shall comply with the requirements of section 2 
relating to procurement from business entities controlled by 
socially or economically disadvantaged persons or handicapped 
persons, or for awarding to business entities which guarantee 
the use of subcontractors controlled by socially or economically 
disadvantaged persons or handicapped persons, approximately five 
percent of the value of its anticipated total procurement of 
goods and services, including construction.  The failure of the 
commission to set aside particular procurements shall not be 
deemed to prohibit or discourage business entities controlled by 
socially or economically disadvantaged persons or handicapped 
persons from seeking the procurement award through the normal 
solicitation and bidding processes. 
    Sec. 6.  Minnesota Statutes 1986, section 473.406, 
subdivision 5, is amended to read:  
    Subd. 5.  [RECOURSE TO OTHER BUSINESSES.] If this 
section does and section 2 do not operate to extend a contract 
award to a business entity controlled by socially or 
economically disadvantaged persons or handicapped persons, the 
award shall be placed pursuant to the normal solicitation and 
award procedures set forth in section 471.345.  
    Sec. 7.  Minnesota Statutes 1986, section 473.406, 
subdivision 6, is amended to read:  
    Subd. 6.  [RULES.] The commission shall promulgate by rule 
standards and procedures for certifying that business entities 
eligible to participate in the set-aside program authorized 
in required by this section and section 2 are controlled by 
socially or economically disadvantaged persons or handicapped 
persons.  The commission shall promulgate other rules as may be 
necessary or advisable to carry out the provisions of this 
section and section 2.  
    Sec. 8.  Minnesota Statutes 1986, section 473.406, 
subdivision 7, is amended to read:  
    Subd. 7.  [OTHER LAWS SUPERSEDED.] In the event of conflict 
with other laws or rules, the provisions of this section and 
section 2 and rules promulgated pursuant to it them shall govern.
    Sec. 9.  [DEADLINE.] 
    By January 1, 1989, the metropolitan council and each 
agency listed in section 3, subdivision 1, must have an 
affirmative action plan and anti-harassment policies that meet 
the requirements of section 3. 
    Sec. 10.  [AUTHORITY.] 
    If a joint House-Senate committee or subcommittee is 
appointed to study and monitor equal opportunity activities of 
metropolitan agencies, the group has the powers granted to 
legislative committees under section 3.153. 
    Sec. 11.  [EFFECTIVE DATE.] 
    Sections 1 to 9 apply in the counties of Anoka, Carver, 
Dakota, Hennepin, Ramsey, Scott, and Washington.  Sections 2, 4, 
5, and 6 are effective January 1, 1989, and apply only to 
contracts for which notice of invitation to bid or requests for 
proposals are issued after the effective date of the section. 
    Approved April 27, 1988