Darcy Lees (DLees@inspire.ospi.wednet.edu)
Fri, 4 Dec 1998 15:34:18 -0800
> My phone has been ringing with questions related to I-200 in
> Washington State. Today I attended a meeting of state agency
> affirmative action officers. The following two documents were
> discussed and could provide some guidance for school districts and
> There is also a committee here that will be looking more closely at
> OSPI responsibilities. It appears that affirmative action plans will
> still be appropriate which isn't to say that there won't be
litigation related to different aspects of what I-200 covers. As I receive new
> documents I will forward that information to you.
> Thank you and I hope this information is helpful to you.
> Darcy Lees
> GOVERNOR'S DIRECTIVE No. 98-01
> TO: All Executive Agencies and Institutions of Higher Education
> FROM: Gary Locke, Governor
> DATE: December 3, 1998
> SUBJECT: Implementation of Initiative Measure 200
> Initiative Measure 200 (I-200) becomes effective today. When the
> voters of our state approved I-200, they were making a statement that
> they wanted to end preferences based on race or sex while leaving
> unchanged preferences for people with disabilities, for veterans, and
> for people over 40 years of age. I-200 is now the law of our state
> and I will uphold and implement the law as I am sworn to do. This
> directive is how I believe state agencies should implement I-200.
> We must make sure that everyone is given fair and equal consideration
> in public employment, public contracting, and public education.
> Therefore, we must continue and intensify our outreach and
recruitment efforts to encourage diversity. Diversity is what makes our state
and country unique. And our diversity is a vital source of strength,
> creativity, and innovation.
> I-200 is a new statute and does not repeal or supersede pre-existing
> statutes. Our task is to harmonize the new and existing laws to the
> greatest extent possible. In cases of a direct, irreconcilable
> conflict, I will read I-200 as implicitly repealing or overriding
> pre-existing law.
> To aid in implementing I-200, I have identified several broad
> categories of laws, rules, policies and procedures that may be
> affected. Each of those categories is described below, together with
> my decision for addressing I-200's impact. All executive agencies
are directed to review their rules, policies, procedures and goals and to
> make changes where necessary to be consistent with this directive.
> While I cannot direct the actions of our state's institutions of
> higher education, I encourage them to consider this directive to
> ensure consistency across state government in the application of I-200.
> I. PUBLIC EMPLOYMENT:
> A. Race, Sex, etc. Shall Not Be Considered in Hiring Decisions.
> Race, sex, color, ethnicity and national origin may not be used in
the final selection of an applicant for public employment, unless allowed
> under section 4 of I-200 (exempting an action that is "based on sex
> and is necessary for sexual privacy or medical or psychological
> treatment; or is necessary for undercover law enforcement...") or
> section 6 of I-200 (exempting actions "that must be taken to
establish or maintain eligibility for any federal program, if ineligibility
> would result in a loss of federal funds to the state").
> B. Plus 3, Exception Testing, and Exam Screening Adjustment Shall Be
> Discontinued When Based on Race, Sex, etc.
> Much debate has occurred over whether the "plus 3 system," "exception
> testing," and "exam screening adjustment" can be continued under
> I-200. The "plus 3 system" is a program where three additional names
> of applicants from an under-represented group may be considered for
> employment if the group of applicants originally referred to the
> employer lacked adequate representation of the group. "Exception
> testing" is a process that, under extenuating circumstances, allows
> people to submit job applications even when the application period
has closed. One of those circumstances is when certain groups are
> under-represented in the eligible applicant pool. "Exam screening
> adjustment" allows applicants from an under-represented group to take
> an oral employment exam if the original group of oral exam applicants
> lacked adequate representation of the group.
> The plus 3 system, exception testing, and exam screening adjustment,
> while clearly not part of the final selection of an applicant, are
> much closer to the final selection decision than outreach and
> recruitment programs. Accordingly, use of these tools based on race,
> sex, color, ethnicity or national origin shall be discontinued unless
> allowed under sections 4 or 6 of I-200. At the same time, use of the
> plus 3 system, exception testing, and exam screening adjustment shall
> continue for veterans, disabled veterans, people with disabilities,
> people over 40 years of age, and other groups of people not affected
> by I-200.
> C. Plans and Goals Shall Remain, but Use of Plans and Goals Shall
Not Be Binding.
> Affirmative action plans and goals are themselves not in conflict
with I-200 and shall be maintained, but shall not be binding unless
allowed under sections 4 or 6 of I-200. Comparison of actual employment data
> with plans and goals may reveal barriers to equal opportunity or the
> need to increase outreach and recruitment efforts. However, race,
> sex, color, ethnicity or national origin shall not be considered in
> the final selection of an applicant.
> D. Outreach and Recruitment Efforts Shall Be Intensified.
> Outreach and recruitment programs designed to generate the best pool
> of qualified applicants for employers are not in conflict with I-200.
> Efforts to increase the number of applications from under-represented
> groups shall be intensified to make sure all qualified individuals
are included and given fair consideration in public employment.
> II. PUBLIC CONTRACTING:
> A. Race, Sex, etc. Shall Not Be Considered in Awarding Construction
> Contracts or Contracts for the Purchase of Goods and Services.
> Race, sex, color, ethnicity and national origin may not be used in
the final selection of a bidder for a public contract, unless allowed
> under sections 4 or 6 of I-200. Adding preference points or price
> preferences for meeting Minority and Women Business Enterprises
(MWBE) goals, requiring attainment of MWBE goals as a condition of
> responsiveness, or otherwise awarding a contract to a bidder who did
> not submit the lowest bid but who met MWBE goals, and similar
programs shall be discontinued, unless allowed under sections 4 or 6 of I-200.
> B. Laudatory Goals Shall Be Continued.
> MWBE purchasing and contracting goals are themselves not in conflict
> with I-200 and shall be maintained, but shall not be binding unless
> allowed under sections 4 or 6 of I-200. Otherwise, the goals shall
be continued as laudatory goals. Agencies shall continue to establish
> laudatory goals for specific contracts to encourage participation of
> MWBE's in state contracting. However, the laudatory goals shall not
> be mandatory; meeting them shall not be a condition of
responsiveness; and there shall be no sanctions for failure to meet them. The
> of MWBE shall also continue to establish annual overall goals that
> will guide agencies in establishing laudatory goals. Annual overall
> goals are intended to help eliminate improper discrimination by
> identifying disparities between the number of qualified contractors
of a particular group able to perform a particular service and the
number actually engaged in work under state contracts. Comparison of actual
> contracting data with goals may reveal barriers to equal opportunity
> or the need to increase outreach and recruitment efforts. However,
> race, sex, color, ethnicity or national origin shall not be considered
> in the final selection of a contractor.
> C. Outreach and Recruitment Efforts Shall Be Intensified.
> Outreach and recruitment programs designed to broaden the pool of
> potential contractors and provide notice of public contracting
> opportunities are not in conflict with I-200. Efforts to increase the
> number of contractors from under-represented groups shall be
> intensified to make sure all qualified contractors are included and
> given fair consideration in public contracting.
> III. PUBLIC EDUCATION:
> A. Student Body Diversity is Encouraged.
> Diversity of all kinds - racial, gender, ethnic, socio-economic, and
> geographic to name a few - are vitally important to the educational
> experience. It is thought-provoking interaction with people
different from ourselves that opens our minds, broadens our perspectives and
> sets a top-quality education apart from a mediocre one. I encourage
> our state institutions of higher education to intensify recruitment
> and outreach programs to maintain diversity in our state's
educational system. However, preferences in admissions based on race, sex,
color, ethnicity and national origin should be discontinued.
> B. Hiring and Contracting.
> Institutions of higher education that do not use state agencies in
> employment or contracting are encouraged to consider this directive
to ensure consistency across state government in the application of I-200.
> IV. CONCLUSION:
> The purpose of this directive is to give general guidance to ensure
> that the new law is applied uniformly across state government. If
you have questions regarding specific programs, please contact Dennis
> Karras, Director of the Department of Personnel, for questions
> relating to public employment; Marsha Tadano Long, Director of the
> Department of General Administration, for questions relating to
public contracting; Jim Medina, Director of the Office of MWBE, for
questions relating to MWBE goals; and Everett Billingslea, my general counsel,
> for general assistance.
> The section headings contained in this directive are for reference
> purposes only and do not affect in any way the meaning or
> interpretation of this directive.
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