Monday, March 29, 2010

Prince George’s Delegation Seeks Veto Power Over WSSC Minority Contracting

The commissioners of the Washington Suburban Sanitary Commission (WSSC) have been told by their general counsel that the agency’s current minority contracting program is illegal. That doesn’t sit well with the Prince George’s County Delegation, which is devoted to the program and its beneficiaries. So they have a solution: they want veto power over what WSSC will do. And they are very, very close to getting what they want.

Minority contracting is big business in Prince George’s County and especially at WSSC. Prince George’s County has a history of sending aggressive defenders of the program to occupy its three seats on the WSSC’s six-member board. In fact, one of the county’s current commissioners is himself a minority contractor who has done business with the agency. The Prince George’s commissioners’ obsession with minority contracting runs so deep that the issue dominated a 12-hour board meeting held after the monster River Road pipe break last year, which was not discussed. What started as a program to protect struggling, small minority businesses decades ago has turned into a protection system for big, politically-connected companies looking to keep their piece of the pie. That’s because in thirty-two years of existence, WSSC’s minority contracting program has never graduated a single firm.

But the program has a problem: it’s illegal. WSSC’s own legal counsel told the commissioners back in January that the program was unconstitutional. The Gazette reported:

According to commissioners, a legal analysis delivered to them in closed session Wednesday concluded that the WSSC’s minority business enterprise program violates the U.S. Supreme Court’s 1989 ruling, in City of Richmond (Va.) v. J.A. Croson Co., that preference programs are unconstitutional unless based on a finding that the beneficiaries otherwise lack access.
Of course, these contractors have had thirty-two years of access! And their political contributions get them a WHOLE lot more access than the average Joe on the street.

WSSC has known that its minority contracting program has had problems for at least five years but its commissioners cannot agree on how to fix it. The three Prince George’s commissioners almost always deadlock with the three Montgomery commissioners, so the current illegal program has been extended again and again. But the legal counsel’s naked declaration is forcing the issue to a head and that alarms state legislators in Prince George’s County. After all, some of them depend on minority contractors for cash and political support and their interests must be protected.

So Prince George’s County Delegate Aisha Braveboy (D-25) and Montgomery County Delegate Herman Taylor (D-14) introduced local bill PG/MC 116-10, which prohibits WSSC modification or approval of a new minority contracting program without General Assembly approval. In this case, that means approval by the Prince George’s delegation, the Montgomery County delegation and finally the General Assembly as a whole. Both lead sponsors have an angle. Braveboy has sought to cast herself as a champion of minority contractors and would like to use the issue in a potential challenge to Senator Ulysses Currie. Taylor is running for Congress against Donna Edwards and is looking for ways to build a base in Prince George’s County.

Local bills pertaining to bi-county agencies like WSSC must pass both the Prince George’s and Montgomery delegations before heading to the floor. Prince George’s approved it by a 19-0 vote. The situation is more complicated in Montgomery because the County Executive and the County Council are on record as opposing the bill. In a letter to the two delegations, the Montgomery County Office of Intergovernmental Relations wrote, “The Montgomery County Executive and Council oppose this bill because it could require the Commission to operate a program that is not legally defensible and because the Commission should have the autonomy to operate its own program.”

Most MoCo legislators care little or nothing about minority contracting. They see it as a Prince George’s issue. If Braveboy and her delegation are jumping up and down about it, why not just give it to them and try to get something for it later? So the MoCo delegation voted in favor of the bill by 11-10, but it did not pass because it needs a majority of the delegation’s twenty-four members, or 13 votes, to get approved. Delegates Al Carr (D-18) and Tom Hucker (D-20) were absent.

But the issue is not yet dead. Braveboy and Taylor are still pushing it and want a new vote, possibly today. If they can get both Carr and Hucker to vote with them, the Prince George’s delegation will get its veto power. WSSC could then fashion the world’s fairest, most legal minority contracting program but if politically-connected contractors squawk, it is going down.

That would be very, very dangerous. In the wake of its legal counsel’s opinion, WSSC is now knowingly operating an unconstitutional race-based contracting program. That makes the agency a sitting duck for any non-minority contractor looking to sue. And if there is a class action that covers a period of years, well… the liability will be incalculable. And any damages will be paid by you, the ratepayers. That’s right, you.

So who’s more important? The ratepayers? Or politicians and their cronies? We’re about to find out.