2014 Kentucky Revised Statutes CHAPTER 67C - RESTRUCTURE OF LOCAL GOVERNMENT IN COUNTY CONTAINING CITY OF FIRST CLASS 67C.119 Requirements for affirmative action plan for consolidated local government -- Responsibilities of Affirmative Action Office -- Employment opportunities to be equally available to all citizens -- Procedures governing awarding of contracts, leases, and other agreements with consolidated local government -- Hearing to ensure compliance and enforcement -- Affirmative action appeals.
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67C.119 Requirements for affirmative action plan for consolidated local
government -- Responsibilities of Affirmative Action Office -- Employment
opportunities to be equally available to all citizens -- Procedures
governing awarding of contracts, leases, and other agreements with
consolidated local government -- Hearing to ensure compliance and
enforcement -- Affirmative action appeals.
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The consolidated local government shall have an affirmative action plan that
complies with all current federal guidelines and requirements relevant to local
governments.
The mayor shall prepare and implement an affirmative action plan.
There shall be established under the direction of the mayor an office that shall
be called the "Affirmative Action Office."
The Affirmative Action Office shall aid the mayor in preparing the plan, and
shall be responsible for the day-to-day operation and implementation of the
affirmative action plan.
An affirmative action plan, in addition to following all federal requirements, shall
include good faith efforts to:
(a) Determine the extent to which minorities and women are underutilized in
major categories;
(b) Identify and eliminate the specific causes of the underutilization;
(c) Identify and eliminate all employment practices that have an adverse
impact on minorities, women, and others protected by applicable law and
the relationship of which to job performance has not been clearly
established;
(d) Rely exclusively on practices that are based on merits and other valid job
related criteria;
(e) Develop substantial applicant pools of validly qualified minorities and
women, special recruitment efforts, and other measures to insure that
sufficient numbers of these groups are included to help reduce their
underutilization;
(f) Develop, through special recruitment efforts and other measures,
applicant pools in which handicapped persons are represented equitably;
(g) Project goals and timetables to include estimates of the representation of
minorities and women likely to result from the operation of this affirmative
action plan; and
(h) Establish organizational structures and monitoring systems that will
ensure effective operation of its goals, and means for modification of the
plan as needed.
All contracts, leases, or other agreements for materials, supplies, equipment,
or, contractual services other than professional that, in the aggregate, exceed
the amount for small purchases in KRS 45A.385 in any fiscal year shall be
awarded in compliance with KRS 424.260 or with KRS 45A.343 to 45A.460, if
applicable.
Notwithstanding anything to the contrary in this section, the provisions of this
section shall apply to every person, firm, corporation, and association that has
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been awarded contracts, leases, or other agreements as provided by KRS
424.260 or with KRS 45A.343 to 45A.460, if applicable, that, in the aggregate,
exceed the amount for small purchases in KRS 45A.385 in any fiscal year.
Employment opportunities generated directly or indirectly by the government of
the consolidated local government shall be equally available to all citizens
without regard to race, color, religion, national origin, marital status, physical
handicap, sex, or age. In order to ensure that employment opportunities
generated directly or indirectly by the consolidated local government are
equally available, contractors and vendors shall be approved as provided by
this section prior to the awarding of any contract, lease, or other agreement
that requires an expenditure in excess of the amount for small purchases in
KRS 45A.385 with the consolidated local government.
No person, firm, corporation, or association shall be awarded a contract, lease,
or other agreement that requires an expenditure in excess of the amount for
small purchases in KRS 45A.385 until and unless that person, firm,
corporation, or association has been prequalified as determined by procedures
and requirements enacted by ordinance by the consolidated local government.
No officer, employee, or agent of the consolidated local government shall
accept a contract, lease, or other agreement that requires an expenditure in
excess of the amount for small purchases in KRS 45A.385 with the
consolidated local government until and unless that person, firm, corporation,
or association has been prequalified as determined by procedures and
requirements enacted by ordinance by the consolidated local government.
All persons, firms, corporations, or associations seeking to bid on contracts,
leases, or other agreements that require an expenditure exceeding the amount
for small purchases in KRS 45A.385 with the consolidated local government
shall submit a request for prequalification as an eligible contractor, pursuant to
the procedures and requirements enacted by ordinance by the consolidated
local government.
The consolidated local government shall make available a list of all bidders
who have been prequalified and shall distribute the list to the appropriate
purchasing officers, employees, or agents of the consolidated local
government.
Any person, firm, corporation, or association that submits an otherwise
qualified bid for a contract, lease, or other agreement pursuant to the
provisions of KRS 424.260, but that has not prequalified pursuant to this
section, may be approved by the consolidated local government as provided by
this section. Any person, firm, or corporation that is approved by the
consolidated local government shall thereafter be qualified and considered
eligible for award for a contract, lease, or other agreement.
The consolidated local government shall prequalify persons, firms,
corporations, and associations seeking a contract, lease, or other agreement
that requires an expenditure exceeding the amount for small purchases in KRS
45A.385 with the consolidated local government if, on an analysis of the
workforce of that entity, the consolidated local government determines that:
(a) The entity is not deficient in the utilization of minority groups or women;
(b) The entity has an acceptable, bona fide affirmative action plan;
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The entity is a small business that employs ten (10) or fewer individuals;
The entity has a federally approved affirmative action program; or
The consolidated local government has made a finding based on other
reasonable criteria, and after consideration of the provisions of 41 C.F.R.
60-2, determines the entity does not require an affirmative action plan.
An acceptable affirmative action plan for an entity seeking a contract, lease, or
other agreement with a consolidated local government shall include:
(a) An analysis of the areas of the entity's workforce within which it is
deficient in the utilization of minority groups and women; and
(b) Timetables to which the entity's good faith efforts shall be directed to
correct the deficiencies and to achieve prompt and full utilization of
minorities and women at all levels and in all segments of its workforce
where deficiencies exist.
A bona fide affirmative action plan for an entity seeking a contract, lease, or
other agreement with a consolidated local government shall include a set of
specific and result-oriented procedures, goals, and timetables to which an
entity commits itself to apply every good faith effort in order to achieve equal
employment opportunity. Procedures without effort to make them work are
meaningless and effort undirected by specific and meaningful procedures is
inadequate.
In reviewing an affirmative action plan for an entity seeking a contract, lease, or
other agreement with a consolidated local government, the consolidated local
government shall be guided by the relevant provisions of 41 C.F.R. 60-2 which
outlines the requirements of affirmative action plans for federal contractors and
vendors.
The consolidated local government shall use its best efforts, directly and
through contracting agencies, other interested federal, state, and local
agencies, contractors, and all other available instrumentalities to cause any
labor union engaged in work pursuant to contracts, leases, and agreements
that are the subject matter of this section or any agency referring workers or
providing or supervising apprenticeship or training for or in the course of this
work to cooperate in the implementation of the purposes of this section.
The consolidated local government on its own motion or on motion of any
interested party shall cause hearings as it deems necessary for compliance or
enforcement of this section.
The consolidated local government shall hold a hearing prior to imposing or
recommending the imposition of penalties and sanctions for violation of this
section. No penalty that would prohibit any contractor from obtaining future
contracts under this section shall be made without affording the contractor an
opportunity for a hearing.
Notice of any final decision or determination of the consolidated local
government that affects the running of time for taking an appeal shall be mailed
to all parties in the matter, including the proposed contractor, lessor or other
party, and the affected local government offices.
The consolidated local government shall establish an affirmative action
appeals board for purposes of hearing appeals from any final decision relating
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to matters pertaining to this section. The board shall be composed of the
county attorney, or his or her designee, the council president of the
consolidated local government, or his or her designee, and a representative of
the financial department of the consolidated local government, or his or her
designee.
Any appeal from a decision of the consolidated local government shall be
hand-delivered or mailed by certified mail to the affirmative action appeals
board not later than thirty (30) days from the date of the local government's
decision. The appeal shall set forth the grounds for the appeal. The appeals
board shall notify all parties in writing of the time and place of a hearing. The
hearing committee may issue subpoenas for any witnesses requested by either
of the parties or in the appeals board's opinion necessary to the proper
disposition of the matter to be heard. All parties shall be allowed legal
representation, witnesses may be cross-examined, and the proceeding shall be
recorded. The local government shall transmit, within ten (10) days after receipt
of notice of appeal, all the original papers in action to the appeals board.
The appeals board shall have the power to require the contractor to furnish all
necessary records and give testimony as to enable the board to render a fair
and competent decision. The duty of the board shall be to review all records,
hear all testimonies of witnesses, and determine whether the decision of the
local government was correct. The decision of the appeals board shall be final.
The decision of the appeals board shall be transmitted in writing to the
appropriate offices of the local government for implementation and shall set
forth specifically its findings of fact and conclusions relative to its determination.
The administration of sanctions and penalties in accordance with that
determination shall be the duty of the appropriate department or contracting
agency of the consolidated local government.
(a) On request of the adversely affected party the appeals board may, on
terms as are just, relieve a party from its final order of determination on
the following grounds:
1.
Mistake, inadvertence, surprise, or excusable neglect;
2.
Newly discovered evidence that by due diligence could not have
been discovered in time for the hearing;
3.
Perjury or falsified evidence; or
4.
Fraud affecting the proceedings other than perjury or falsified
evidence.
(b) The request shall be made within thirty (30) days after notification of the
appeals board's final determination. A request under this subsection does
not affect the finality of the order or determination or suspend its
operation.
In accordance with the enforcement provisions of this section, the consolidated
local government may cancel, terminate, suspend, or cause to be canceled,
terminated, or suspended, any contract, lease, or agreement that is the subject
matter of this section for failure of the contractor or vendor to comply.
Contracts, leases, and agreements may be canceled, terminated, or
suspended absolutely or continuance of contracts, leases, and agreements
may be conditioned on a program for future compliance as approved by the
consolidated local government.
(27) Any contracting agency shall refrain from entering into further contracts or
extensions or other modifications of existing contracts, with any noncomplying
contractor, until the contractor has established and will carry out personnel and
employment policies in compliance with the provisions of this section.
(28) Whenever the consolidated local government makes a determination regarding
noncompliance by a contractor pursuant to this section, it shall promptly notify
the appropriate contracting agency and other affected local government
agencies and offices of the action recommended. The contracting agency shall
take the action recommended and shall report the results of that action to the
consolidated local government.
(29) If the appeals board shall so direct, contracting agencies shall not enter into
contracts with any bidder or prospective contractor unless the bidder or
prospective contractor has satisfactorily complied with the provisions of this
order or submits a program for compliance acceptable to the consolidated local
government.
Effective:June 25, 2013
History: Amended 2013 Ky. Acts ch. 95, sec. 2, effective June 25, 2013. -- Created
2000 Ky. Acts ch. 189, sec. 10, effective July 14, 2000.
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