First Regular Session
Sixty-first General Assembly
LLS NO. 970287.01 BWM
HOUSE BILL 971299
STATE OF COLORADO
BY REPRESENTATIVES Agler, Epps, Lawrence, Adkins, McPherson, Owen, and Pfiffner;
also SENATORS Wattenberg and Coffman.
STATE, VETERANS &
A BILL FOR AN ACT
CONCERNING ENACTMENT OF THE "EQUAL OPPORTUNITY
ACT OF 1997".
(Note: This summary applies to this bill as introduced
and does not necessarily reflect any amendments which may be subsequently
Sets up a system for giving preferences to emerging small businesses in state contracting under the state "Procurement Code". Defines the term "emerging small business" to mean a firm reporting less than $1,000,000 in gross revenue on its most recent federal tax return for purposes of competitive sealed bidding for construction or public projects and a firm reporting less than $500,000 in gross revenue on its most recent federal tax return for purposes of procurements other than construction and public projects, including professional services contracts. Places limitations on the designation of emerging small businesses.
Requires all state agencies to conduct state business without regard to the race or gender of any person or entity. Changes the term "minority subcontractor" to "emerging small business" for purposes of considering the involvement of such entities in the criteria used to rank persons for state professional services contracts.
Defines the terms "corrective remedy", "discrimination", and "findings".
Authorizes the state personnel director to adopt rules providing corrective remedies for discrimination only when:
! The state personnel director has made specific written findings in each instance with reference to specific appointments or promotions in the state personnel system;
! The efficacy of nonrace and nongender based corrective remedies have been fully explored;
! The corrective remedies are necessary to eliminate the present day effects of the prior discrimination; and
! The corrective remedies are used only to the extent, and only for the duration necessary, to eliminate the presentday effects of the prior discrimination.
Repeals current state personnel board rules on affirmative action, except for grievance and appeal procedures based on allegations of discrimination, on July 1, 1997.
Requires annual reports by the state personnel director to the general assembly on the effectiveness of each corrective remedy in eliminating the presentday effects of prior discrimination and estimates of when effective remedies will have achieved objectives and may be discontinued. Specifies that any corrective remedy continuing for more than 5 years shall be presumptively ineffective.
Makes conforming amendments.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. Short title. This act shall be known and may be cited as the "Equal Opportunity Act of 1997".
SECTION 2. Article 2 of title 24, Colorado Revised Statutes, 1988 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW SECTION to read:
242109. Race or gender discrimination prohibited conduct of state business definitions. (1) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(a) "STATE AGENCY" SHALL INCLUDE ANY BRANCH, DEPARTMENT, AGENCY, COMMISSION, COUNCIL, BOARD, BUREAU, COMMITTEE, INSTITUTION, INCLUDING INSTITUTIONS OF HIGHER EDUCATION, OFFICE, BODY CORPORATE, GOVERNMENT CORPORATION, INSTRUMENTALITY, OR OTHER ENTITY OF STATE GOVERNMENT, OR ANY OFFICER OR EMPLOYEE THEREOF.
(b) "STATE BUSINESS" INCLUDES, BUT IS NOT LIMITED TO, THE BESTOWING OR WITHHOLDING OF BENEFITS, THE IMPOSITION OF OBLIGATIONS OR BURDENS, THE AWARDING OF CONTRACTS, THE APPOINTMENT OF OFFICERS AND EMPLOYEES, AND THE FUNCTIONS SET FORTH IN SECTION 242105.
(2) EVERY STATE AGENCY SHALL CONDUCT ALL STATE BUSINESS WITHOUT REGARD TO THE RACE OR GENDER OF ANY PERSON.
(3) NOTWITHSTANDING SUBSECTION (2) OF THIS SECTION, NOTHING IN THIS SECTION SHALL PROHIBIT ANY STATE AGENCY FROM ACCOMMODATING THE GENDERRELATED PRIVACY INTERESTS OF ANY PERSON.
(4) NOTWITHSTANDING THE PROVISIONS OF SECTION 242101, THIS SECTION SHALL APPLY TO EVERY STATE AGENCY.
SECTION 3. 2450141, Colorado Revised Statutes, 1988 Repl. Vol., as amended, is amended to read:
2450141. Rules limitations discrimination corrective remedies. (1) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(a) "CORRECTIVE REMEDY" MEANS ANY ACT UNDER THE STATE PERSONNEL SYSTEM WHICH IS INTENDED TO ELIMINATE THE PRESENTDAY EFFECTS OF PRIOR DISCRIMINATION.
(b) "DISCRIMINATION" MEANS INTENTIONAL DISPARATE TREATMENT UNDER THE STATE PERSONNEL SYSTEM OF AN INDIVIDUAL ON THE BASIS OF THAT INDIVIDUAL'S RACE, ETHNICITY, OR GENDER. STATISTICAL DISPARITY, UNDERREPRESENTATION, UNDERUTILIZATION, MEMBERSHIP IN A RACIAL-, ETHNIC-, OR GENDER-BASED CLASS IN WHICH OTHER INDIVIDUALS HAVE SUFFERED FROM DISCRIMINATION, OR SOCIETAL FACTORS ALONE SHALL NOT CONSTITUTE "DISCRIMINATION".
(c) "FINDINGS" MEANS A DETERMINATION, BASED UPON DOCUMENTED SPECIFIC ACTS OR OMISSIONS, THAT:
(I) DISCRIMINATION HAS OCCURRED; AND
(II) THERE CONTINUE TO BE PRESENTDAY EFFECTS OF THAT DISCRIMINATION.
(1) (2) It
is the intent of the general assembly to encourage
the implementation of REQUIRE equal
employment opportunities and affirmative
action corrective remedies within
the state personnel system which
THAT preserve the merit principles contained in section 13 of
article XII of the state constitution and this article and which
disavow and prohibit the imposition of a mandatory quota system.
January 1, 1980, and while underutilization of and invidious discrimination
against members of ethnic and racial minorities and women exist
and continue to exist within the state personnel system,
STATE PERSONNEL DIRECTOR is authorized to adopt and
implement rules and regulations which carry out the intent of
this section RULES PROVIDING CORRECTIVE
REMEDIES FOR DISCRIMINATION. Such rules and
regulations shall be implemented
only upon written findings by the
state personnel director in each instance that the following conditions
exist with reference to specific appointments and promotions within
the state personnel system WHEN:
(a) THE STATE PERSONNEL DIRECTOR HAS MADE SPECIFIC WRITTEN FINDINGS IN EACH INSTANCE WITH REFERENCE TO SPECIFIC APPOINTMENTS OR PROMOTIONS WITHIN THE STATE PERSONNEL SYSTEM;
(a) The appointing authority has
voluntarily requested referrals for affirmative action purposes;
(b) There is discriminatory underutilization
of members of the ethnic or racial minority group or women for
which the referral has been requested, within the agency, in the
class for which an appropriate eligible list or combination of
eligible lists has been compiled; and
(c) The test or selection devices
for the compilation of such eligible list or lists have not been
validated according to applicable employee selection guidelines.
(b) THE EFFICACY OF NONRACE AND NONGENDER BASED CORRECTIVE REMEDIES HAVE BEEN FULLY EXPLORED;
(c) THE CORRECTIVE REMEDIES ARE NECESSARY TO ELIMINATE THE PRESENTDAY EFFECTS OF THE PRIOR DISCRIMINATION; AND
(d) THE CORRECTIVE REMEDIES ARE USED ONLY TO THE EXTENT, AND ONLY FOR THE DURATION, NECESSARY TO ELIMINATE THE PRESENT DAY EFFECTS OF THE PRIOR DISCRIMINATION.
(2) (4) Rules
of the state personnel system adopted and implemented in accordance
with this section PRIOR TO JULY 1, 1997, except rules and
regulations relating to grievance
and appeal procedures within the state personnel system and based
on allegations of discrimination are repealed, effective January
1, 1980, and the authority of the board to adopt and implement
any affirmative action corrective remedy or rule, which allows
or provides for, or incorporates by reference, requisitions or
referrals which are in addition to the names of the three persons
ranking highest on the appropriate eligible list or combination
of such lists, is terminated on such date
JULY 1, 1997.
(5) (a) THE STATE PERSONNEL DIRECTOR SHALL REVIEW EVERY CORRECTIVE REMEDY AND REPORT ANNUALLY TO THE GENERAL ASSEMBLY THE EFFECTIVENESS OF EACH CORRECTIVE REMEDY IN ELIMINATING THE PRESENTDAY EFFECTS OF THE PRIOR DISCRIMINATION.
(b) IF THE DIRECTOR DETERMINES THAT THE CORRECTIVE REMEDY HAS BEEN EFFECTIVE, THE DIRECTOR SHALL ESTIMATE WHEN THE CORRECTIVE REMEDY WILL HAVE ACHIEVED ITS OBJECTIVES AND SHOULD BE DISCONTINUED.
(c) IF THE DIRECTOR DETERMINES THAT THE CORRECTIVE REMEDY HAS BEEN INEFFECTIVE, THE DIRECTOR SHALL DISCONTINUE THE CORRECTIVE REMEDY.
(d) ANY CORRECTIVE REMEDY CONTINUING FOR MORE THAN FIVE YEARS SHALL BE PRESUMPTIVELY INEFFECTIVE.
(6) APPOINTMENTS, PROMOTIONS, COMPENSATION, AND BENEFITS WITH RESPECT TO POSITIONS EXEMPT FROM THE STATE PERSONNEL SYSTEM SHALL BE ACCORDED WITHOUT REGARD TO RACE OR GENDER.
SECTION 4. 24301403 (2), Colorado Revised Statutes, 1988 Repl. Vol., as amended, is amended to read:
services listings preliminary selections. (2) For
each proposed project for which professional services are required,
the principal representative of the state agency for which the
project is to be done shall evaluate current statements of qualifications
and performance data on file with the department and shall conduct
discussions with no less than three persons regarding their qualifications,
approaches to the project, abilities to furnish the required professional
services, anticipated design concepts, and use of alternative
methods of approach for furnishing the required professional services.
The principal representative shall then select, in order of preference,
no less than three persons ranked in order and deemed to be most
highly qualified to perform the required professional services
after considering, and based upon, such factors as the ability
of professional personnel, past performance, willingness to meet
time and budget requirements, location, current and projected
work loads, AND the volume of work previously awarded to the person
by the state agency.
and the extent
to which said persons have and will involve minority subcontractors,
with the object of effecting an equitable distribution of contracts
among qualified persons as long as such distribution does not
violate the principle of selection of the most highly qualified
person. In selection as mentioned
in this section, Colorado firms shall be given preference when
qualifications appear to be equal. All selections are subject
to approval by the principal representative, and all contracts
between the principal representative and such selected professionals
shall be consistent with appropriation and legislative intent.
SECTION 5. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.