Appeal of Associated Sign & Post, Inc.

Decision Date26 November 1985
Docket NumberNo. 1-285A48,1-285A48
Citation485 N.E.2d 917
PartiesIn the Matter of the Appeal of ASSOCIATED SIGN & POST, INC. From an Adverse Ruling of the Bloomington Human Rights Commission, Contract Compliance Committee, of the City of Bloomington, Indiana. Associated Sign & Post, Inc., Petitioner-Appellant, City of Bloomington, Respondent-Appellee, Hall Signs, Inc., Intervenor.
CourtIndiana Appellate Court

David Rogers, Rogers, McDonald & Jones, Bloomington, for petitioner-appellant.

Linda Runkle, City Atty., City of Bloomington, Bloomington, for appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Associated Sign & Post, Inc. (Associated), appeals from the judgment of the Monroe Circuit Court denying its appeal from a decision of the Bloomington Human Rights Commission's Contract Compliance Committee. That decision upheld a finding by the contract compliance officer that a bid submitted by Associated was unacceptable because it failed to include an adequate affirmative action proposal as required by the commission's rules. We affirm.

FACTS

In August 1984, the Bloomington Board of Public Works published notices soliciting sealed bids for various traffic control signs, sign posts, street name sign brackets, and related materials. As required by the Contract Compliance Regulations of the Bloomington Human Rights Commission, these notices also included the following statement:

"Each bidder must submit a written Affirmative Action Program by the bidding deadline. Each bidder must insure that all employees and applicants for employment are not discriminated against because of any race, religion, color, sex, national origin, age, ancestry or because of any disadvantages or handicaps. All of the preceding protected classes must be included in your Affirmative Action Plan in order to be acceptable. In addition to other requirements, your plan MUST include a workforce breakdown, an internal grievance procedure and the appointment of someone with responsibility and authority to implement the plan "You are advised to submit your plan separate from the sealed bid. The Contract Compliance Officer for the City of Bloomington is Ann Vaughan. The Board strongly suggests each bidder review his or her Affirmative Action Plan with Ms. Vaughn well in advance of the bidding deadline."

recruitment from minorities, equal access and training programs, a non-retaliation statement, and how the policy is communicated.

Record at 18. The deadline for submitting bids was August 21, 1984.

Four bids were submitted to the Board of Public Works. Associated's bid of $169,457.56 was the lowest bid considered by the board. 1 The affirmative action proposal submitted with its bid, however, substantially failed to meet the requirements for such a plan. Consequently, the Contract Compliance Officer found Associated's bid to be unacceptable.

On August 31, 1984, Associated amended its proposal to meet the requirements for an acceptable affirmative action plan. Nevertheless, the Contract Compliance Committee of the Bloomington Human Rights Commission failed to overturn the Contract Compliance Officer's original finding of unacceptability when it considered Associated's appeal of that determination on October 16, 1984. Subsequently, the Board of Public Works awarded the contract to Hall Signs, Inc., the second lowest bidder with a bid of $181,791.55.

On October 26, 1984, Associated filed its petition in the Monroe Circuit Court challenging the adverse determination of the contract Compliance Committee. Following a hearing, the trial court entered special findings of fact and conclusions of law denying Associated's petition. Associated subsequently perfected the present appeal.

ISSUES

The parties raise essentially two issues for our consideration. 2 Rephrased, they are as follows:

1. Whether the Bloomington Human Rights Commission has the authority to promulgate rules and regulations requiring bidders seeking to contract with the city to submit an acceptable affirmative action proposal prior to the deadline for submitting bids.

2. Whether a contractor's failure to submit an acceptable affirmative action proposal with his bid justifies the rejection of that bid.

DISCUSSION AND DECISION
Issue One

Associated initially argues that the Bloomington Human Rights Commission's Contract Compliance Regulations dealing with the submission of affirmative action proposals by bidders are invalid. Specifically, it avers, Bloomington, Ind., Municipal Code 2.21.070 (1983), requires only that bidders seeking contracts with the city submit a written affirmative action proposal to the Human Rights Commission, "which proposal must be approved prior to entering a contract with the City." (Emphasis added.) No proposal need be finally approved then until the contract is actually awarded according to Associated's interpretation of the ordinance. Consequently, Associated's argument concludes, the Contract Compliance Committee's regulation which requires submission of an acceptable affirmative action proposal prior to the deadline for receiving bids invalidly exceeds the scope of the power delegated to the administrative agency by Municipal Code 2.21.070 and its related provisions. We cannot agree.

It has long been the policy of this state to ensure the protection of its citizens' civil rights. Indiana Code section 22-9-1-2 (Burns Supp.1985), expresses that policy in the clearest possible terms when it states:

"(a) It is the public policy of the state of Indiana to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations and acquisition through purchase or rental of real property including but not limited to housing, and to eliminate segregation or separation based solely on race, religion, color, sex, handicap, national origin or ancestry, since such segregation is an impediment to equal opportunity. Equal education and employment opportunities for acquisition of real property are hereby declared to be civil rights.

"(b) The practice of denying these rights to properly qualified persons by reason of race, religion, color, sex, handicap, national origin or ancestry of such person is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the public policy of this state and shall be considered as discriminatory practices. The promotion of equal opportunity without regard to race, religion, color, sex, handicap, national origin or ancestry through reasonable methods is the purpose of this chapter.

"(c) It is also the public policy of this state to protect employers, labor organizations, employment agencies, property owners, real estate brokers, builders and lending institutions from unfounded charges of discrimination.

....

"(e) This chapter shall be construed broadly to effectuate its purpose."

The legislative origins of this policy lie in the Indiana Fair Employment Act first enacted in 1961. In 1963, the scope of the act was significantly broadened and it was appropriately renamed the Indiana Civil Rights Act. Though frequently amended since that time, its basic principles remain the same.

The legislature also has provided a mechanism by which local governmental units can implement the state's civil rights policy. Indiana Code section 22-9-1-12.1 (Burns Supp.1985), sets out the basic framework of this mechanism. That provision states in relevant part:

"(b) Any city, town, or county is hereby authorized to enact an ordinance or ordinances, which may include establishment or designation of an appropriate local commission, office, or agency to effectuate within its territorial jurisdiction the public policy of the state as declared in section 2 [22-9-1-2] of this chapter without conflict with any of the provisions of this chapter. Any city or town may enact such an ordinance or ordinances jointly with any other city or town located in the same country, or jointly with that county. The board of commissioners of each county is also authorized to enact ordinances in accordance with this section. An agency established or designated under this section has no jurisdiction over the state or any of its agencies.

"(c) An ordinance enacted under this section may grant to the local agency the power to:

(1) Investigate, conciliate and hear complaints;

(2) Subpoena and compel the attendance of witnesses or production of pertinent documents and records;

(3) Administer oaths;

(4) Examine witnesses;

(5) Appoint hearing examiners or panels;

(6) Make findings and recommendations;

(7) Issue cease and desist orders or orders requiring remedial action;

(8) Order payment of action damages, except that damages to be paid as a result of discriminatory practices relating to employment shall be limited to lost wages, salaries, commissions or fringe benefits;

(9) Institute actions for appropriate legal or equitable relief in a circuit or superior court (10) Employ an executive director and other staff personnel;

(11) Adopt rules and regulations;

(12) Initiate complaints, except that no person who initiates a complaint may participate as a member of the agency in the hearing or disposition of the complaint; and

(13) Conduct programs and activities to carry out the public policy of the state, as provided, in section 2 [22-9-1-2] of this chapter, within the territorial boundaries of a local agency.

....

"(e) A decision of the local agency may be appealed under the terms of IC 4-22-1 [4-22-1-1--4-22-1-30] the same as if it was a decision of a state agency."

Pursuant to this statutory mechanism, the City of Bloomington created the Bloomington Human Rights Commission. It also enacted ordinances delineating specific powers and duties of the commission. One such ordinance provides in relevant part:

"Affirmative Action by City Contractors. All Contractors doing business with the City, except those specifically exempted by regulations promulgated...

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