Erie Boulevard project missed minority guidelines
State failed to adequately monitor if hiring met federal law
SCHENECTADY Erie Boulevard was the city’s biggest project this year, but while contractors for tiny jobs were tracked monthly to make sure they hired minorities, no one noticed the workers at the big job were almost all white.
It wasn’t until the end of the season — when it would normally be too late for a contractor to add more workers — that the problem was noticed. The state Department of Transportation “formally notified” the city of the problem on Oct. 26, spokeswoman Jennifer Post said.
In this case, the project will last another year, giving the contractor, Rifenburg Construction, more time to comply with federal minority employment rules. The company has already hired minority subcontractors to install new street lighting, sidewalks and landscaping as the project comes to an end next year.
“Our workforce next year will include minorities and women,” said project manager Ken Barth. “We will definitely surpass the goals.”
But the incident highlighted the difference between the way the city enforces its local laws regarding minority employment and the way the state enforces federal laws.
The city did not monitor the $14 million Erie Boulevard project because it is funded by state and federal dollars; only 5 percent of the total cost will be paid by the city. In such cases, the state Department of Transportation is supposed to enforce federal rules regarding minority employment.
For every other job in the city this year, Affirmative Action Director Miriam Cajuste was on the case.
When she began the job in 2008, contractors often said they could not find minorities to fulfill the requirement. She quickly discovered some of them were only advertising for the most complex and specific job on their project, rather than trying to hire minorities for hauling, masonry and other more general tasks.
One company wanted only a person who had expertise digging many feet underground to work on large sewer pipes. That company, Carver Construction, somehow ended up with an all-white crew on every project.
Cajuste met with every contractor who took a job for the city. She provided lists of minority workers looking for jobs. She helped them track down workers who had the right certifications, licenses and insurance. And when that wasn’t enough, she finally told them to shape up or ship out.
When Carver wouldn’t budge in 2008, it lost every Schenectady contract for two years. Carver officials tried to argue that it wasn’t fair to force them to subcontract some of their work to a minority company when they had enough workers to do the entire job in-house, even though they had signed bidding documents saying they would subcontract.
Cajuste came down hard.
“A zero means you lied on a legal document,” she said.
This year, Carver is back — and it has hired minorities to work as subcontractors, as the law requires.
“Carver is doing fine,” Cajuste said. “They have met the minority participation.”
And so far this year, every other contractor hired by the city has done the same.
“Everyone is meeting their minority goals,” she said.
That’s not to say it’s easy. She meets with each contractor before the season starts and tells them “what we expect of them.”
They must provide her with a list naming each minority-owned company they have hired as a subcontractor. Then they must report each month on whether they paid those companies for any work. Sometimes, the company doesn’t actually employ the subcontractor they said they would hire.
“I’ll have the subcontractors call me and say, ‘It’s been two months, I haven’t gotten a call,’ ” Cajuste said. “I’ll get on the phone right there and then. At the end of the day, there will be a [job] there.”
Since Carver was punished, she said, other companies have fallen into line.
“I don’t think anyone wants what happened to Carver to happen to them,” she said.
She also tracks the contractors’ month-to-month data, because she’s found that companies often double-count minorities when they report their final figures. That effort also allowed her to catch a mistake when one company undercounted its total.
But at the state level, monitoring is not a hands-on process. The monitoring consists of reviewing a database, where contractors self-report their hiring, and then notifying the municipality if the contractor falls below the requirements.
In this case, monitoring wasn’t even that strict. In fact, state officials did not even know they were supposed to be monitoring the project at first.
“It’s a city road,” one spokesman said in confusion.
Two spokespeople checked with state officials, who said it was a state-monitored project. Other officials, who asked for anonymity to avoid being punished, said it was clear that DOT was supposed to monitor the project.
But spokeswoman Post eventually said it wasn’t the state’s responsibility to make sure the contractor followed the rules.
“Essentially, we also monitor, to help local communities ensure they meet the requirements,” she said.
Erie Boulevard is a city road, but 95 percent of the funds for the work come from the state and the federal government. The state Department of Transportation oversees federal work in the state, paying out the federal funds as the work is completed.
The federal government wants contractors to spend 3.2 percent of their total project budget on minority hiring. It’s far lower than the city’s requirement, which is 7 percent.
But even with that small requirement, Rifenburg only hired minorities to fulfill 2.4 percent of the work done this year. And DOT didn’t notice.
It wasn’t until The Gazette asked for the figures that state officials looked it up — and discovered Rifenburg was nowhere near its goal. In response, DOT sent out a letter, three days before the official end of the first year of the project.
“We notified them of our concerns of being below the goals,” Post said. “My understanding is that it is quite early in the project.”
The project is scheduled to end by November 2013, so it’s already passed the halfway point, but Post noted that the contractor will be doing $9 million of the $11 million job next year.
Spokesman Beau Duffy said the state didn’t take action earlier because so little money had been spent.
“Early in the project, we don’t issue a deficiency notification until they get to about 20, 25 percent,” he said.
A monitor reviews the project spending monthly, Duffy added. He didn’t worry about the low minority employment rate at first because he figured it would improve as time went on, Duffy said.
It’s not against the rules to hire all the minorities to work in the second year of a project.
But some minority workers, who have been frustrated by the lack of hiring this year, said the state should have been watching Rifenburg more closely. They noted that if it was a typical project, noticing the issue in late October would have been too late, since most construction projects end by Nov. 1.
“There’s nobody really monitoring that, as far as I can see, and I’ve been here 20 years,” said minority masonry worker Larry Nix.
He owns a company that specializes in sidewalks and curbs. In hopes of getting that part of the Erie Boulevard job, he asked City Hall for a list of all the contractors bidding on the job. Before those bids were even open, he sent out specs, plans and his project costs to every bidder in hopes of being hired.
No one called him back, he said.
Barth, the project manager, said Rifenburg contacted subcontractors as soon as it won the bid, and signed them all right away. The company doing the sidewalks and curbs is minority-owned, he said.
That follows the law, but it violates the spirit of the law, said Lorena Miller, director of the Schenectady Minority Contractors Technical Assistance Program. She and others said contractors should allow for open bidding on their subcontracts, or at least announce them and give workers a reasonable period of time to submit proposals. The federal government requires that for certain large contracts.
Miller said the goal of Schenectady’s law was to get contractors to hire local workers for local jobs.
“What about in our own hometown?” she said. “No luck. Rifenburg was not going to budge. Pretty much they said, ‘We got our own guys.’ ”
She tried to mediate between Rifenburg and Nix, without success, and watched in dismay as this year’s jobs went mostly to whites.
“It’s got a horrible, dismal minority participation rate,” she said.
And although that rate promises to be far better next year, that didn’t reassure her. She said they should have hired minorities this year, too.