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Baltimore's noble but flawed hiring bill

On the face of it, City Council President Bernard C. "Jack" Young's local hiring bill sounds eminently reasonable. When Baltimore spends its residents' tax dollars, why shouldn't it do so in a way that supports hiring city residents, particularly considering the high rate of unemployment here? That common-sense appeal, perhaps, explains why the measure got preliminary approval on a unanimous vote Monday night. Indeed, it sounds like such a good idea that one might wonder: Why doesn't every city and county do the same thing?

The answer, according to the city's Law Department, is that it's unconstitutional. In a pair of memos analyzing this bill, and another related to a similar proposal three years ago, city attorneys cite several federal cases from around the country in which local hiring ordinances were struck down by the courts as violations of the Constitution's Privileges and Immunities Clause," which prohibits one state from discriminating against the citizens of another. According to the Law Department's analysis of the case law, the courts have found that the only way such an ordinance could pass constitutional muster would be if the city could demonstrate not just that it suffers from high unemployment but that the employment of nonresidents was specifically the cause of that problem. No city whose law has been challenged has met that standard, the Law Department says.

Mr. Young has countered by noting that the cities of Boston and San Francisco have local hiring laws in effect. If they can find a way to do it, he says, why can't we?

That line of reasoning might lead one to infer two things: that those cities' programs have been upheld as constitutional and that Mr. Young's ordinance is modeled on them. Neither is true. San Francisco's law is new — it had its second anniversary in March — and Boston's is old, dating back to 1983. But neither has been reviewed in federal court. And both of them are different from Mr. Young's bill, which is arguably much more sweeping.

Mr. Young's proposal would apply to the recipients of any city contract of more than $300,000 or any firm completing a project that gets more than $5 million in city subsidies of any kind. It would require them to determine how many new jobs will be needed to complete the contract or project and to fill at least 51 percent of those jobs with Baltimore residents. The bill would allow the Mayor's Office of Employment Development to issue waivers in some cases, for example if the contractor makes a good-faith effort to follow the law or if there aren't enough qualified Baltimore residents to do the work. Intentional failure to follow the bill's terms could lead a firm being barred from city work for a year. A violation would be considered a misdemeanor, subject to a fine of up to $500 for each offense.

The laws in San Francisco and Boston apply only to certain construction projects, not procurement, and they make no requirements about firms' hiring. Rather, they require a certain percentage of the work hours performed by each trade on eligible jobs to be performed by city residents. If a city were to enact such a law, that would be the better way to handle it. After all, many of the contracts covered by Mr. Young's proposed ordinance will not require new hiring, and to the extent they do, his bill would not prevent the firms from filling all their slots for broom-pushers with city residents and reserving the skilled — and well compensated — jobs for workers from elsewhere.

Advocates of San Francisco's ordinance say they have taken steps they believe will get around the adverse court decisions Baltimore's Law Department cites, including producing an extensive set of findings documenting the need for the law and stipulating that work performed by out-of-state employees doesn't count toward hours-worked requirements. Baltimore has not engaged in a similar fact-finding process, and it doesn't contain the same exemption for out-of-state workers.

It is too early to tell how effective San Francisco's law will ultimately be, but Boston's local hiring initiative has not lived up to its promise. Boston's goal that 50 percent of construction hours on city-sponsored projects go to city residents has never been met. That was an issue in Mayor Thomas M. Menino's 2009 re-election campaign; according to a Boston Globe report at the time, the percentage of work going to city residents had steadily declined over the years despite the law. Boston Corporation Counsel William Sinnott (the equivalent of the city solicitor) told the Globe that the city had not enforced the law out of fears that it would be challenged in court, and the city would lose.

We cannot fault Mr. Young for wanting to do whatever possible to improve the employment prospects of city residents, but we must encourage Mayor Stephanie Rawlings-Blake to veto this bill if the council gives it final passage. The mayor has taken a variety of steps in recent years to encourage city contractors to hire Baltimore residents, and we encourage Mr. Young to seek ways to strengthen and expand those efforts rather than pursuing legislation of dubious legality and dubious effectiveness.

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