April 18, 1975
Mr. Gerald Andrews, Commissioner
Bureau of Administration
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-73
Article X of the Affirmative Action Plan
Dear Mr. Andrews:
You have requested an official opinion from this office based on the following factual situation:
On July 1, 1973, the State of South Dakota implemented an Affirmative Action Plan.
Article X of the Affirmative Action Plan requires the following:
A. Contractors, vendors, and suppliers doing business with any state agency, department, or institution place on file with the state contract compliance officer a copy of their affirmative action program containing goals and objectives and timetables for achieving those goals and objectives. This requirement shall be a condition precedent to doing business with the State of South Dakota where the contractor, supplier or vendor regularly employs fifteen (15) or more persons. This policy shall be observed by all department and institution purchasing and contract agents.
B. No award of any contract with the State of South Dakota shall be executed or approved by the state for any service, supply, or commodity unless the successful bidder submits with his bid an Affirmative Action Plan, if the successful bidder employs fifteen (15) or more persons. The Department of Administration shall appoint an individual to monitor this policy and serve as contract compliance officer.
C. The contract compliance officer, in cooperation with the Division of Human Rights, shall establish a system to monitor contractors in order to assure compliance with the provisions of their own affirmative action plans and the State Human Relations Act. Non-compliance shall be reported to the Division of Human Rights and shall be cause for possible:
1. Suspension of contract.
2. Debarment from future bidding.
3. Hearings and court action under the South Dakota Human Relations Act.
The Bureau of Administration in the budget of the Purchasing and Printing Section requested 1-FTE and funds to comply with the Affirmative Action Plan; however, we are advised that this request was not approved by the South Dakota Legislature.
Based on the above factual situation, you ask:
What is the legal responsibility of the Bureau of Administration to comply with the contract compliance portion of the Affirmative Action Plan for the State of South Dakota when the South Dakota Legislature does not allow the staffing or funding for this function?
The Affirmative Action Plan referred to in your request is in essence a plan drafted pursuant to requirements of the federal government. Executive Order #11246, 3 CFR 424 and Order No. 14, 41 CFR 60-1, 60-2. Pursuant to these orders, contractors with the federal government are required to make available equal employment opportunities without regard to race, sex, age, color or national origin. Contractors covered by these orders who do not meet the requirements of the orders and regulations related thereto are possibly subject to:
1) having their name published by the secretary of labor as failing to comply with the executive order or rules promulgated in relation thereto;
2) having the department of justice bring legal actions to enforce the orders and rules or bring proceedings under title VII of the Civil Rights Act of 1964;
3) cancellation, termination or suspension of any contract or portion thereof; or
4) restricting further contracts between the federal agency and the non-complying contractor.
Executive Order #11246, § 209, 3 CFR 424, 428.
Insofar as the state of South Dakota applies for and receives federal funds from federal programs, the provisions of Executive Order 11246 and Order No. 14 are applicable, Executive Order 11246 § 301, 3 CFR 424, 430, Order No.4 § 60-2.1, 41 CFR 160. The Affirmative Action Plan you refer to was formulated by the executive branch of state government to meet the requirements of the above federal order.
It is clear that the Bureau of Administration is in a difficult position. On the one hand federal law requires an affirmative action plan for equal employment opportunity, yet on the other hand, the Legislature has specifically not allowed funding for the staffing of the position of contract compliance officer, a position "created" by the state Affirmative Action Plan.
It appears to me that if the continued receipt of federal funds is desired, either compliance with the affirmative action plan or attempting to change the plan to omit a contract compliance office, with federal approval, is technically required. If the Legislature did not authorize and fund a position essential to the Affirmative Action Plan I suggest that you consider SDCL 4-8A-9 as possible sources of revenue for funding the compliance officer position. In the absence of receipt of funds for the position from the above source, it is my opinion that the functions of the contract compliance officer would then probably need to be assumed by existing personnel.
Whether the Legislature funds this position or not the fact remains that under the federal orders discussed above the State of South Dakota is obligated to have an Affirmative Action Plan for equal employment opportunities. Clearly, a contract compliance officer function is contemplated by that plan and by the above federal order. If this function is not performed, the federal government may have the technical power to withhold federal funds. (See Executive Order 11246 § 209.) Presuming that it is your decision that it is desirable to keep federal funds, compliance with the executive orders discussed above is technically required.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:rw
cc: Dan Garry
