Legal questions and lobbying by independent colleges and universities appear to have derailed a plan to expand Maryland's minority contracting requirements to private construction projects that receive state dollars.
Two weeks after they appeared eager to have the Board of Public Works enact such a requirement without discussion, Gov. Martin O'Malley and Comptroller Peter Franchot are now unsure whether the board could legally take such an action, their spokesmen said.
Minority business advocates say they are disappointed that the board is shying away from the proposal, which they say is needed to ensure a level playing field in the state. The board is scheduled to hold a hearing on the measure this morning.
However, advocates said the attention that the board has paid to the issue is already opening doors.
"They're telling us it's not constitutional for the board to set such policies," said Wayne R. Frazier Sr., president of the Maryland-Washington Minority Contractors Association. "Even if we can't get the board to approve anything [today], now all of the private schools that traditionally have blown us to the curb will be lining up because they know this is going to be an issue."
Maryland will spend more than $74 million this year to support private capital projects, ranging from a new cardiac care tower at Johns Hopkins Hospital to a new driveway for a nonprofit art center in Southern Maryland. Such projects have never been subjected to Maryland's Minority Business Enterprise (MBE) goals, which call for minority- or women-owned businesses to get a 25 percent share of state contracts.
The issue came up two weeks ago when the board was considering a $5.75 million bond award to Loyola College to help pay for a $19.6 million expansion of the library it shares with the College of Notre Dame of Maryland.
Loyola's president, Brian Linnane, will testify today that the college reached out to dozens of minority firms for the project but that only five bid for the work and three received awards. College spokeswoman Courtney Jolley said Loyola has had greater success in getting minority contractors for work on its athletic center. More than half of the $23.3 million spent on the first two phases has gone to minority firms, she said.
"It's clear from observing what happened from our attempts to involve MBE firms in this project that it can be challenging," Jolley said of the library expansion.
Both the Maryland Independent Colleges and Universities Association and the Maryland Hospital Association plan to testify today about their existing efforts to do business with minority firms and to pledge to work with the state to do more.
"But certainly, we do not believe we need to be somehow a part of a regulation that applies to all state agencies because we are not state agencies," said Tina M. Bjarekull, president of the independent college and university association. "We want the state to recognize our independence."
The hospital association is not taking a position on the proposed requirement, but it will demonstrate a commitment to inclusion, said Lisa Fiedler, the group's spokeswoman.
"We are committed to doing more," Fiedler said. "That process is under way."
O'Malley operated under a similar requirement when he was mayor of Baltimore, and he still supports bringing it to the state level, said Thomas Hickey, his liaison to the Board of Public Works. However, Hickey said, a 2003 advisory letter from the attorney general's office questioned the legality of such a move, and O'Malley has asked Attorney General Douglas F. Gansler for a formal opinion on the matter.
The 2003 letter, written at the request of Sen. Verna Jones, a Baltimore Democrat who was then sponsoring legislation to extend the minority business requirement to state-supported private construction projects, says the state would likely need to conduct a study to establish the legal basis for such a requirement.
Treasurer Nancy K. Kopp, the third member of the board, wants to proceed cautiously, given that the legislature has considered but not adopted such requirements in the past, said her spokesman, Howard S. Freedlander. Kopp, Franchot and O'Malley are all Democrats.
Franchot spokesman Joseph Shapiro said the comptroller remains committed to ensuring that all state-supported projects have minority participation.
"The matter of principle is he's going to be vigilant in reviewing all Board of Public Works projects for MBE participation," Shapiro said.