The Denver Model

Kincaid says getting a disparity study for the City of Birmingham has been "a gleam in my eye" since first being elected to office. The second time around proved the charm. The Council voted to support his $575,000 plan to hire the law firm of Dan Muse, a former city attorney for Denver , and his associates as consultants in the study.

Muse defended Denver 's set aside program for minority- and women-owned business. It withstood an 11-year legal battle through federal courts, where it was upheld. In 2003, 7 of the 9 U.S. Supreme Court justices refused to hear the case and let stand a lower court's ruling that affirmed the program.

"That means we got it right," Muse says from his Denver office.

He and his associates will soon make the move to Birmingham to begin what will be an exhaustive 9- to 12-month research project. They will study contracting and procurement practices in the entire Birmingham/Hoover statistical area, not just the City.

A disparity study is considered the first-line legal defense strategy in successfully creating minority set-aside programs. The study determines if there is measurable evidence of discrimination against minorities in the local construction industry that would legally justify a government's decision to take corrective actions.

If City's study finds evidence of discriminatory practices in the public sector - and even the private sector - then the Mayor and Council can set policies and create programs based on his group's recommendations, Muse says.

He says the City can, in effect, spell out the consequences to offending contractors and companies like this:

"Look, we can't tell you that you can't discriminate in your private-sector work, but we can tell you that, if you do, we may, No. 1, restrict your ability to do public-sector work with the City; and No. 2, we can put in place affirmative action efforts to make sure that women and minorities get their fair share of government dollars."

Denver now has a legal program that annually sets aside 10 percent of its construction and professional services contracts for businesses owned by minorities and women.

Charity Starts at Home

Currently, the City of Birmingham keeps no running tab of the amount of work it awards to minority businesses.

"My sense is minority procurement in the City is less than three percent," Kincaid says. Whatever the level - and I don't know what the level is - it's unacceptable, just unacceptable, and it has to be higher."

If the study finds evidence of racial discrimination in Birmingham and the City tries to establish any race-based program, Kincaid fully expects the City will be sued. He chuckles about the not-so-veiled threats he's received from some who have "urged" him not to follow through with this study.

"But at the end of the day, if we are able to put funding into minority hands that will hire minority individuals, who live in a minority city, to buy houses, and put their minority children in city schools - well, you can see the positive domino, salutary effects that comes with this," Kincaid says. "We have an obligation, I feel, to do this."

As an alternative to Arrington's disputed mandatory set-aside program, the City Council in 1990 created the Birmingham Construction Industry Authority, part of a voluntary affirmative action program under the Birmingham Plan (It sought to expand opportunities in business, construction, housing and lending for minorities). But Kincaid says the BCIA has not substantially increased the number and strength of enough minority contractors. He calls it "a dismal failure."

"I don't have much conversation with BCIA (officials) ever since I chastised them at their banquet," Kincaid says. "Things just aren't as hunky-dory or as pleasant as they would have you believe."

Michael Bell, BCIA's executive director, disagrees with the mayor.

Bell names at least four minority contractors who have come through its programs and are very successful in the competitive construction industry.

Others are growing, as hundreds of millions of dollars in construction work flows to minority-owned companies and subcontractors. BCIA compiles the dollar amounts from self-reported figures provided by public entities - such as the airport, the city schools and the housing authority - and by some contractors who get the lucrative, private sector work.

However, Bell readily admits that BCIA could be much more effective if it had some statutory power to actively engage all private contractors and ensure their compliance with a government policy of inclusion for minority and women-owned businesses.

The problem is, no such policy exists, within the City or Jefferson County .

Though Bell welcomes the disparity study, he says there's much County Commission President Larry Langford, and Kincaid especially, can do even now.

They can set an example by awarding more professional services contracts (which are exempt from competitive bidding) to minority businesses, Bell says. And they can use their office as a bully pulpit, like Maynard did, to encourage private sector contractors to partner and do business with minorities.

"It's easy for (Kincaid) to say that our program has been a dismal failure, but show me what he's doing in City Hall," Bell says. "If you're looking for who can make a difference, you don't have to go any further than City Hall. Once we get City Hall going in the right direction, people will look at the example it is setting and will want to emulate that."

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