Richmond v JA Croson Company Joint Appendix

    CL — >

No, 87-998

In T he

(Emxi of %  'Mnxtxb Stains
October Term, 1987 

City of Richmond,
Appellant,

J. A. Croson Company,
________  Appellee.

On Appeal from the United States Court of Appeals 
for the Fourth Circuit

JOINT APPENDIX

Walter H. Ryland 
Williams, Mullen, 

Christian & Dobbins 
1021 East Cary Street

John Payton * 
Mark S. Hersh 
Peter L. Kahn 
W ilmer, Cutler &

Post Office Box 1320 ~ Pickering
Richmond, Virginia 23210-1320 2445 “ M” Street, N.W.
(804) 783-6415 
Attorney for Appellee

Washington, D.C. 20037 
(202) 663-6000
Drew St. J. Carneal 
City Attorney
Michael L. Sarahan 
Assistant City Attorney
Michael K. Jackson 
Assistant City Attorney
Room 300, City Hall 
900 E. Broad Street 
Richmond, Virginia 23219 
(804) 780-7940 
Attorneys for Appellant

April 21,1988 * Counsel of Record

JURISDICTIONAL STATEMENT FILED DECEMBER 17,1987 
PROBABLE JURISDICTION NOTED FEBRUARY 22,1988



Page
District Court Docket Entries — ................................... 1

Court of Appeals Docket Entries ....... ...........................  5

Richmond City Council’s Hearing on Adoption of Mi­
nority Business Utilization Plan ............. ..... ..... .......  9

TABLE OF CONTENTS



11

The following matters have been omitted in printing
this joint appendix because they appear on. the follow­
ing pages in the appendices to the printed Jurisdictional 
Statement:

Second Opinion and Judgment of the Court of Appeals.. la

Denial of Petition for Rehearing With Suggestion for 
Rehearing En Banc ......................................................  27a

Notice of Appeal.................................... ..... ....................  29a

Supreme Court Order Granting Certiorari, Vacating 
the First Opinion and Judgment of the Court of 
Appeals, and Remanding to the Court of Appeals.... 31a

The following matters have been omitted in printing 
this joint appendix because they appear on the follow­
ing pages in the separately bound supplemental ap­
pendices to the printed Jurisdictional Statement:
First Opinion and Judgment of the Court of Appeals.... 1

Order of the District Court ................... ................... .....  110

Memorandum of the District Court ................... ..........  112

Ordinance Creating Minority Business Utilization 
Plan .......... ................................ .................................. . 233



UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION

No. 84-0021-R

J.A. Croson Company,

v.
Plaintiffs

City of Richmond,
Defendants

DOCKET ENTRIES

DATE NR. PROCEEDINGS

1984 
Jan.12 
Jan. 12

Jan.18

Jan. 18

Jan. 19

Jan. 23

1 Petition for Removal, filed, ape
2 Notice of Filing of Petition for Removal, filed.

ape
3 Pltf’s Motion for Preliminary Injunction, filed.

ape
4 Pltf’s Memorandum in Support of Motion for

Preliminary Injunction, filed, (exhibits at­
tached & one transcript as exhibit) ape

IN OPEN COURT: MERHIGE, J. HALASZ, 
OCR APPEARANCES: PARTIES BY
COUNSEL. MATTER CAME ON FOR 
HEARING ON PLTF’S MOTION FOR A 
TRO. MOTION HEARD; DENIED. ORDER 
TO ENTER. CASE SET FOR TRIAL ON 
2-20-84 AT 2 PM. (55 MINS.) JWH

5 ORDERED that Pltf’s Motion for Preliminary
Injunction is DENIED. ENT 1-23-84, 
RRMjr, and filed. Copies mailed, mkh



2

DATE NR. PROCEEDINGS
1984

Jan. 25 6 Pltf’s Notice to Take Deposition of Melvin 
Brown & production of documents, filed. Sub­
poena issued, ape

Jan.27 7 Deft’s Motion to Dismiss, filed, ape
Jan. 27 8 Deft’s Memorandum of Law in Support of 

Motion to Dismiss, filed, ape
Feb. 3 Records rec’d fr. Melvin Brown, Pres, of Con­

tinental Metal Hose purs, to subpoena duces 
tecum of 1/26/84. (in brown expandable) 
ape

Feb. 6 Records rec’d fr. Melvin Brown 2/03/84 purs, 
to deposition subp. & subp. duces tecum 
picked up by Mr. Brown, ape

Feb. 8 9 Pltf’s Memorandum in Opposition to Motion to 
Dismiss, filed, ape

Feb. 10 10 Deft’s Motion for Partial Summary Judgment, 
filed, ape

Feb. 10 11 Deft’s Brief in Support of Motion for Partial 
Summary Judgment, with attached (located 
in brown expandable folder), filed, ape

Feb. 17 12 Pltf’s witness list, Filed, afw
Feb. 17 13 Deft’s Motion for Sum. Judg., filed jlm
Feb. 17 14 Deft’s Memo, of Law in Support of Motion for 

Sum. Judg., filed jlm
Feb. 17 — Telephone Deposition of Elsie C. Slaton taken 

2-9-84, reed jlm
Feb. 17 — Deposition of Donald M. Sparrow taken 1-30-84 

on behalf of deft, reed jlm
Feb. 17 — Deposition of Wallace Green taken 2-15-84, 

reed jlm



3

DATE NR. PROCEEDINGS

1984
Feb. 17 — Telephone Deposition of Curtis W. Johnson, 

reed jlm
Feb. 17 — Deposition of Eugene Bonn, reed jlm
Feb. 17 15 Stipulated Exhibits of the Parties, filed (List, 

with exhibits in brown binder) jlm
Feb. 17 16 Pitfs’ Cross-Motion for Partial Sum. Judg., 

filed jlm
Feb. 17 17 Pltfs’ Memo, in Support of Cross-Motion for 

Sum. Judg., filed jlm
Feb. 17 Depositions of Vernon Forest Williams, Jr., 

Harold R. Wall, Donald G. Clark, Chris W. 
Stevens, Jr. & Alfred E. Smith on 2-6-84, 
reed jlm

Feb. 20 18 Pltf’s Proposed Findings of Fact, filed jlm
Feb. 20 IN OPEN COURT: MERHIGE, J. HALASZ, 

OCR APPEARANCES: PARTIES BY 
COUNSEL. MATTER CAME ON FOR 
HEARING ON PLTF’S MOTION FOR A 
PRELIMINARY INJUNCTION. PLTF AD­
DUCED EVIDENCE IN SUPPORT OF 
THE MOTION. MATTER TAKEN UNDER 
ADVISEMENT. JWH

Feb. 23 18 Pltf’s Motion to Admit Stipulation of Evidence, 
filed, ape

Feb.23 19 Stipulation of Evidence, filed, ape
Feb. 23 — Stipulated Exhibits, rec’d. ape
Feb. 24 20 Deft’s Notice of hearing on motion to dismiss 

scheduled 3/12/84 at 8:30 a.m., filed, ape
Feb. 24 21 Deft’s Memorandum in Opposition to Pltf’s 

Cross-Motion for Partial Summary Judg­
ment, filed, ape



4

DATE 

1984 
Feb. 24

Feb. 24 
Feb. 24

Feb. 27

Mar. 12

Dec. 3

Dec. 3 
Dec. 27

NR. PROCEEDINGS

22 Pltf’s Reply to Deft’s Motion for Summary
Judgment, filed, ape

23 Pltf’s Motion for Summary Judgment, filed, ape
24 Pltf’s Memorandum in Support of Motion for

Summary Judgment, filed, ape
25 ORDER, that Stipulation of Evidence is ad­

mitted into evidence, ENTERED by RRMjr 
on 2/27/84 & filed. Copies mailed to counsel, 
ape

IN OPEN COURT: MERHIGE, J. HALASZ, 
OCR APPEARANCES: PARTIES BY
COUNSEL. MATTER CAME ON FOR AR­
GUMENTS ON MERITS AND HEARINGS 
ON MOTIONS. CITY RICHMOND’S MO­
TION TO DISMISS DENIED. ARGU­
MENTS ON MERITS AND CROSS MO­
TIONS SUMMARY JUDGMENT HEARD. 
CASE TAKEN UNDER ADVISEMENT BY 
THE COURT. (1 HR. 29 MINS.) JWH

26 ORDER that judgment be and is hereby en­
tered in favor of the defendant City of Rich­
mond and it stands dismissed with its taxable 
costs, motions of the City of Richmond for 
counsel fees be and are DENIED, ent. 12-3- 
84, RRMjr, filed. Copies mailed, jlm

27 Court’s Memorandum, filed, jlm
28 Pltf’s Notice of Appeal, filed. Filing Fee Pd.

TPO mailed, apr



5

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

Docket No. 85-1002 (L)

J. A. Croson Company,
Appellant,

V.

City of Richmond,
Appellee.

Associated General Contractors of A merica,
Amicus Curiae.

DOCKET ENTRIES

DATE FILINGS—PROCEEDINGS

01/02/85 Case Docketed. Awaiting ROA. (db)
01/08/85 Transcript Purchase Order ree’d by G. Halasz 

01/08/85, filed, (db)
01/16/85 ORDER consolidating 85-1002 (L) and 85-1041, 

filed, (db)
01/16/85 DISCLOSURE STMNT, E, N, filed, (db)
01/17/85 DISCLOSURE STMNT, A (85-1002), N, filed, 

(db)
01/17/85 DISCLOSURE STMNT, E (85-1041), N, filed, 

(db)
01/24/85 DISCLOSURE STMNT, A (85-1041), N, filed, 

(db)
02/06/85 BRIEFING ORDER, filed. A due 03/18/85. Oral 

argument tentatively set for Summer 1985 ses­
sion of Court, (db)



6

DATE FILINGS— PROCEEDINGS
02/15/85 DESIGNATION, A,—parts to be included in the 

appendix, filed, (db)
02/21/85 DESIGNATION, E,—parts to be included in ap­

pendix, filed, (db)
3/18/85 MOTION of Associated General Contractors of 

America (C-69) for leave to file as amicus 
curiae, filed, jd

03/21/85 DESIGNATION, E,—parts to be included in ap­
pendix, filed 2/15/85. (db)

3/26/85 REPLY (C-69) of A J. A. Croson Company to 
motion to file as amicus curiae, filed (DHB :nac)

4/2/85 RESPONSE of City of Richmond to motion C-69, 
filed, jd

4/3/85 ORDER granting motion C-69. (BMM :jd) Copy 
to counsel.

04/18/85 DISCLOSURE STMNT, (amicus curiae), N, filed, 
(db)

6/6/85 MOTION of E (F-48) to dismiss A Corson’s ap­
peal, filed, jd

6/10/85 ORDER denying motion F-48. (BMM :jd) (Copy 
to counsel.

07-03-85 MOTION (G-24) and memorandum in support of 
motion to file supplemental joint appendix, filed 
(BMM :cw)

7/8/85 MOTION G-24, memorandum in support of mo­
tion and conditionally submitted jt apx trans­
mitted to KKH/JMS/JHW. (BMM:jd)

7/16/85

12/13/85

ORDER granting motion G-24 to file supp. apx. 
(BMM:jd) Copy to counsel.

MOTION (M-103) for stay of mandate of A, 
filed (DB:nac)

12/13/85



7

DATE FILINGS—PROCEEDINGS

12/17/85 ORDER denying A’s motion for stay of mandate, 
filed (DB:nac) Copy to Ryland; Barley-Sara- 
han; Kennedy

07/09/86 U.S. Supreme Court order dated 7/7/86 granting 
cert., vacating and remanding to Fourth Circuit 
for further consideration in light of decision in 
Wygant vs. Jackson Board of Education, 476 
U.S.— (1986) ; filed, lgs

7/10/86 TRANSMITTED order of Supreme Court to 
panel KKH, JMS, & JHW, BMM :cb

08/18/86 Judgment of U.S. Supreme Court dated 7/7/86; 
filed, lgs

08/19/86 TRANSMITTED judgment of U.S. Supreme 
Court of JMS, KKH, JHW, BMM:cb

11/13/86 SUPPLEMENTAL AUTHORITY submitted by 
A, filed. BMM:cb

TRANSMITTED to KKH, JMS, JHW
3/5/87 MOTION (F-3) of A for a briefing order, filed. 

SARrgac Transmitted to JMS/KKH/JHW on 
3/5/87).

7/21/87
7/23/87

Appellant’s bill of costs filed, mb
PETITION for Rehearing w/Suggestion for Re­

hearing In Banc filed by E, BMMrcb
7/23/87 MOTION of National Lawyers Committee for 

Civil Rights Under Law for leave to file a brief 
amicus curiae in support of E’s pet. for re­
hearing and sug. for rehearing in banc and con­
ditionally submitted brief filed, BMM :cb

7/24/87 Transmitted Petition for rehearing with sug­
gestion for rehearing in banc and motion of 
National Lawyers Committee and conditionally 
submitted brief to panel, transmitted petition 
for rehearing & suggestion for rehearing in 
banc to all active circuit Judges, BMM :cb



8

DATE

8/12/87

8/14/87

9/18/87

0/24/87

9/25/87

10-01-87

10-01-87

11/18/87

__________FILINGS—PROCEEDINGS

A’s answer to petition for rehearing ^/sugges­
tion for rehearing in banc, filed. BMM:cb

TRANSMITTED A’s answer to all active circuit 
judges. BMM:cb

ORDER denying pet. for rehearing & sugg. for 
rehearing in banc, and FURTHER ORDERED 
the the motion of the National Lawyers Com­
mittee for Civil Rights Under Law for leave 
to file brf as amicus curiae is granted, filed. 
SAR :gac Copies to Kennedy; Sarahan-Carneal; 
Ryland.

MOTION of City of Richmond for stay of man­
date, filed. SAR:gac

Transmitted motion of City of Richmond for stay 
of mandate to JHW/JMS/KKH w/copy to all 
active cir. judges on 9/25/87.

ORDER staying the mandate pending timely ap­
plication of the E to the Supreme Court for a 
writ of certiorari, filed (SAR:cw) Copies to 
counsel.

ORDER filed correcting this Court’s order filed 
10-01-87, filed (SAR:cw) Copies to counsel.

NOTICE OF APPEAL TO SUPREME COURT, 
filed. Copy transmitted to Clerk, Supreme 
Court, (db)



9

RICHMOND CITY COUNCIL 

In Re : Ordinance Number 83-69

HEARING ON ADOPTION OF 
MINORITY BUSINESS UTILIZATION PLAN

April 11, 1983 

Richmond, Virginia



10

INDEX
PUBLIC SPEAKERS: Page

Esther Cooper .....         n
Freddie Ray .........     12
Stephen Watts ....... ...... ..... ................. ......... ..........  14
Richard Beck .......     31
Mark Singer ...........      33
Patrick Murphy .....      37
A1 Shuman ................................................................  41

COUNCIL VOTE 58



11

[2] Appearances:
Roy A. West, Mayor 
Carolyn C. Wake, Councilperson 
Henry L. Marsh, III, Councilperson 
Walter T. Kenney, Councilperson 
W illiam J. Leidinger, Councilperson 
Drew Gillespie, Councilperson 
G. S. Kemp, Jr., Councilperson 
Henry W. Richardson, Councilperson 
Claudette Black McDaniel, Councilperson 
W illiam H. Hefty, City Attorney 
Manuel Deese, City Manager
(The following transcript was produced from 
stenographic notes taken of the electronically- 
recorded procedings.)

MAYOR WEST: Call Item 21.
UNIDENTIFIED: Item 21, (inaudible) 369, amend

Article 1, General Provisions Act, Part B, Definitions, 
Chapter 24.1 Procurement, Ordinance 82-294-270, adopted 
December 20, ’82 of the Richmond City Code of ’75, as 
amended, to add definitions of minority business contract 
to minority group members; to add in said Chapter a new 
article number, [3] Article 8A, Title Minority Business 
Utilization Plan.

MAYOR WEST: Mr. Richardson.
MR. RICHARDSON: Yes. This ordinance is— can 

be considered teeth to a philosophy that I think most 
Members of Council already adhere to. It is an ordi­
nance that will require contracts let by the City of 
Richmond at least 30 percent of which be secured by 
minority vendors. We have not reached a successful or 
an admirable goal in terms of minority participation, 
and this paper will make it mandatory that the purchas­
ing department and the administration conscientiously



12

take a greater effort in attempting to distribute (in­
audible) of a 50 percent minority community, to have 
those dollars recycled back to minority businesses, in the 
interest of the entire community.

This is not a social paper. This is not a humanitarian 
paper. This is a paper based on good sound business 
practices that will help and assist the growth, the de­
velopment, and the improvement of attitudes of all Rich­
monders, and I would wholeheartedly encourage all Mem­
bers of the Council to support the adoption of this paper.

MR. DEESE: Mr. Mayor?
MR. RICHARDSON: This is 30 percent requirement,

and there are a number of clauses in here that address 
the specifics, the regulations, and how it is to be carried 
out.

MR. DEESE: Mr. Mayor?
[4] MAYOR WEST: Mr. Deese.

MR. DEESE: Mr. Mayor, Members of the City
Council, the administration conceptually concurs in the 
paper. However, I would ask if Mr. Richardson would be 
amenable to any adjustment that would have a dollar 
amount. I would specifically request a dollar amount 
coinciding with the dollar amount that we have in the 
current papers, bids over a certain amount, which, I 
think, is $10,000. Because, it could cause us somewhat 
of a problem, anything less than that, and I’d say over 
$ 10,000.

And the other request I would make, Mr. Richardson, 
we do know that in this paper, there is sufficient require­
ments for the administration to waive and provide, as 
long as an effort has been made, and that is similar to 
the CDBG project, and we’re familiar with the project.

MR. RICHARDSON: Could you explain, again, why
you would need that exception, because there is a clause 
written in to waive any contract where the minority 
vendor cannot be located, and the purchasing agent has 
been given the discretionary decision-making ability to 
determine those instances.



13

MR. DEESE: The only reason I was raising the
dollar amount, for the ease of the administration. It 
would be better for us if we have a dollar amount, as 
opposed to all construction projects. I think very few 
of them would be below [5] the number that we’re talk­
ing about, but I would think that it would help us in the 
ease of the administration and the paper if we had a 
dollar amount.

MR. RICHARDSON: Would it also—
MR. DEESE: Would the dollar amount— what,

$10,000 as we have now in the current law.
MR. MARSH: Mr. Mayor?
MAYOR WEST: Mr. Marsh.
MR. MARSH: May I suggest that we could accom­

plish that when the regulations and guidelines are drawn 
up. It doesn’t have to be spelled out in the paper. At the 
time the guidelines are drawn up.

MR. DEESE: As long as Members don’t have to
amend the paper.

MR. MARSH: That could just be provided in the
guidelines,

MR. DEESE: Conceptually, we concur with the
paper.

MR. MARSH: One other request that I have. We
have the CDBG procedure and guidelines. I’m assuming 
they will be followed?

MR. DEESE: Yes. We have the same guidelines and
we don’t see any major problem with this.

MAYOR WEST: Mr. Richardson, is there any man­
date in this paper that a contractor who would contract 
with [6] the City would have to go out and get a sub­
contractor, but if, on the other hand, if that were needed, 
then he would have to— are you saying now that every 
contractor has to subcontract at least 30 percent of the 
workout?

MR. DEESE: He must make a bona fide, good effort
to accommodate the requirement of the law. There are 
provisions that we use in CDBG. If they’re not sue-



14

cessful, then it ultimately comes to me. And I make the 
determination whether or not there’s been a good faith 
effort.

MAYOR WEST: My question is, suppose this is a
turnkey contractor, who can do the job from A to Z; is 
he still forced out onto the market?

MR. RICHARDSON: No, he’s not. There’s some
emergency provisions in there that—

MAYOR WEST: That’s what I’m asking. If he can
do everything from A to Z, does he still have to subcon­
tract any of that work?

MR. RICHARDSON: No, he does not have to. But, 
this is an across the board 30 percent, that wherein some 
cases, we may not meet any more than one, two, three 
or four percent. Hopefully, we would compensate by, in 
some areas, increasing the minority participation and on 
balance, at the end of the year, we would have acquired 
a 30 percent utilization.

MAYOR WEST: Once again, the question is, where
[7] there is subcontracting required, we have to do that 
to 30 percent, is this what you are saying?

MR. RICHARDSON: Yes.
MAYOR WEST: One other question. Why was there

an expiration date of 1988 on this thing? I thought this 
would be something that we were going to perpetuity 
with.

MR. MARSH: That was on advice of counsel. I think
there are advantages—

MR. HEFTY: The reason for that and the sug­
gestion that a date be put in, was that the federal cases 
that approved this sort of set-up have said that it’s re­
medial legislation, and the purpose is to remedy past dis­
crimination. And hopefully, in some period of time, this 
program will cause that to happen. Five years was 
deemed to be a period of time with which that would 
happen in all likelihood. It can be judged at that time 
and either continued— it may expire before that. It’s 
an ordinance that can be amended by Council at any 
time. That was deemed to be a fair date to evaluate the



15

effects of the program, rather than leave it open-ended.
MR. LEIDINGER: Mr. Hefty—
MAYOR WEST: Mr. Leidinger.
MR. LEIDINGER: Mr. Hefty, if I may, you’ve in­

dicated a viewpoint taken by the Courts in cases where 
legislation like this has been approved. And, on page 10, 
line 16— if that is line 16—we say this article is [8] re­
medial. You having said that as legal advice, and that 
language being in the ordinance, are we acknowledging 
it’s remedial for that purpose, and thus, exposing our­
selves to liability?

MR. HEFTY: No, I don’t feel that we’re exposing
ourselves to liability, but the Supreme Court, when it 
approved the ten percent minority set-aside, specifically 
said that the justification was that it was remedial. 
We’ve reviewed the statistics of the construction con­
tracts, and it certainly justifies that. We have tried to 
tailor this ordinance as closely to the federal ordinance, 
which was— or federal statute, which was upheld by the 
Supreme Court, as possible. And, yes, it is remedial. 
I don’t think that’s exposing us to any liability for prior 
acts.

MR. LEIDINGER: Question. Doesn’t the word re­
medial mean to make special efforts at the moment and 
in the near future to make up for prior deficiencies?

MR. HEFTY: Yes. In the term remedial, we’re not
just implying that the City was intentionally discrimina­
tory in the past. What we’re saying is there are statistics 
about the number of minorities that were awarded con­
tracts in the past which would justify the remedial 
aspects of the legislation. We’re not saying there was 
intentional discrimination in any particular case. Sur­
prisingly, or maybe not so surprisingly, when the Su­
preme Court dealt with this issue, they allowed [9] evi­
dence of general discrimination— at least discriminatory 
effect in the entire industry— construction industry. And 
they allowed more use of broader statistics than they do 
in a lot of cases. I’m not saying that we have discrim­
inated in any individual case in the past.



16

MR. LEIDINGER: In civil rights legislation, is not
statistical evidence prima facie evidence?

MR. HEFTY: It is evidence. I mean, whatever the
statistics are, they are. We are not changing the sta­
tistics. If you look at what the City has done in procure­
ment over the last few years, the statistics are the sta­
tistics, and they cannot be changed.

MR. LEIDINGER: Has the U.S. Supreme Court or
any federal Court or state Court which has jurisdiction, 
if you will, over the City of Richmond, addressed to set 
aside beyond ten percent?

MR. HEFTY: No, not that I can find.
MR. LEIDINGER: Approved or addressed?
MR. HEFTY: I could not find a case in which it

was addressed.
MR. LEIDINGER: Thank you.
MR. HEFTY: There was a recent Supreme Court

case which was decided in last month, involving Boston, 
where Boston had a 50 percent set-aside for construction 
contracts requiring Boston contractors, City residents, to 
receive 50 [10] percent of the business. That was upheld 
at least on commerce clause grounds, possibly not on 
equal protection grounds. But, to answer your question 
directly, I could not find any case above ten percent.

MR. RICHARDSON: Mr. Mayor?
MAYOR WEST : Mr. Kemp and then Mr. Richardson.
MR. KEMP: Mr. Deese, what is our present experi­

ence?
MR. DEESE: Right now, I think we are probably

still under ten percent. I don’t have the exact statistics, 
but it’s still under about ten percent. We do better on 
CDBG than we’ve done on the other projects.

MR. KEMP: Is it near ten percent, or—
MR. DEESE: The CDBG?
MR. KEMP: Overall.
MR. DEESE: I think it was somewhere between

seven and eight on the overall— on general City con­
tracts. And then CDBG, I think we pushed closer, in the 
20’s, somewhere between 17 and 22, I believe.



17

MR. RICHARDSON: Mr. Mayor?
MAYOR WEST: Mr. Richardson.
MR. RICHARDSON: Before we further any Council

debate, could we indulge in the public hearing and then 
get back to—

MAYOR WEST : I wanted to make sure all questions
[11] were answered, and then we can discuss later. 
Anyone to speak in favor of this paper, come forward, 
please.

MR. RICHARDSON: And Ms. Cooper, we want to 
apologize for keeping you here all night, watching us 
over the community development block grant funds.

MAYOR WEST : She’s quite conversive with the proc­
ess of government.

MS. COOPER: Mr. Mayor, Council, my name is
Esther Cooper. I head a small minority corporation 
here in Richmond called Esther Cooper and Associates. 
We are a temporary employment placement people. I 
am here also to represent the Maymont Civic League. 
And we are in support of this ordinance of the 30 per­
cent set-aside.

We are aware of the fact, as minorities-—and I am a 
double minority-—that the exclusionary process is often 
very subtle, and we cannot put our fingers on it. How­
ever, from time to time, as we market daily on the side­
walks of Richmond, we are exposed to not doors being 
slammed in our faces, but a kind of closed atmosphere 
to entertaining new companies and new ideas and new 
vendors here in the Richmond area.

For example, last year we had the occasion to visit one 
company five times before we were even allowed to do 
business with them. On our fifth occasion going there, 
a vice president said to us, well, the National Football 
League did [12] not settle their dispute in one meeting, 
so you must learn to negotiate four, five, even a dozen 
times. We’re not marketing on an inferior product. We 
are marketing a standard product that is very similar 
to our competitors’.



18

I’m here speaking for contractors. True, I am not a 
contractor. I do not hire construction people. But, I 
would not let this opportunity pass without saying that 
if you can give us access to the enterprise system, we 
want it. We’re not asking to come in as second-class or 
second-rate service folk. We’re asking to come in as first- 
rate service folk, but to allow us access. Thirty percent 
is not one hundred percent. There is still seventy per­
cent left over.

We, the Maymont Civic Association and myself as a 
citizen of Richmond City, living here and with a business 
in the City of Richmond, support this ordinance. We are 
in support of Mr. Chuck Richardson and the 30 percent 
for contractors. Even though we will not reap the bene­
fits of it immediately, we cannot let the opportunity pass. 
We support Councilman Richardson and the ordinance. 
Thank you very much.

MAYOR WEST: Thank you. Anyone else to speak in
favor of this paper? Anyone to speak in opposition?

MR. R A Y : My name is Freddie Ray, and I’m the
president of the task force for historic preservation in 
minority communities. I did not know that this paper 
was going to be presented, and it’s a bit ahead of our 
newsletter, [13] which will be published by the end of 
this month, where we speak specifically about economic 
development and specifically about the development of 
minority businesses.

I would like to refer this Council to actions that have 
been taken in Oakland, California; Cleveland, Ohio; and 
Toledo. In Oakland, California, with a population—mi­
nority population of much less than 50 percent or 51 per­
cent as we have in Richmond, Oakland has a 22 percent 
requirement of minority participation. This proposal, as 
I’ve heard it tonight, is rather limited, in that Oakland 
speaks not only of minority participation in contracting, 
but also talks about ownership and participation in the 
ownership of developments which are possibly funded by 
the City of Oakland.



19

The results have been tremendous. In one development, 
that is the development of a Hyatt hotel in Oakland, eight 
percent of the ownership of that hotel was, in fact, given 
to minority organizations. The result has been over 22 
million dollars of investment and development within 
Oakland minority communities.

I can see no reason why this ordinance, as suggested 
by Mr. Richardson, should not be passed. I will suggest 
that we look at other ways of building and supporting 
economic development for minorities. Again, if I had 
known that this was being presented, I would have pre­
sented additional data about additional cities that do, 
in fact, include such an [14] ordinance. I think this is 
a step in the right direction; a little slow, but we’re be­
ginning to move, grow and develop as a city. Thank you.

MAYOR WEST: Do we have anyone else to speak in
favor of this paper? Anyone to speak in opposition to 
the paper?

MR. WATTS: Good evening. Mr. Mayor, Members
of Council, my name is Stephen Watts. I am an attor­
ney with the law firm of McGuire, Woods and Battle 
here in Richmond, and I’m appearing tonight on behalf 
of my client, Associated General Contractors of Virginia, 
or AGC, in opposition to proposed ordinance number 
83-69.

AGC is a Virginia non-profit organization, composed 
of some 600 general contractors, subcontractors, material 
and service suppliers, located throughout Virginia. Over 
130 of AGC’s members are located in the Richmond area. 
I’ve also been asked to voice the support of the Builders 
Exchange of Richmond for the remarks that I’m going to 
provide tonight, and specifically, the presence here to­
night of Mr. George Albright, who is executive secretary 
of that organization, and Mr. Tyree Chappell, who is the 
president.

The Richmond Builders Exchange is composed of ap­
proximately 675 general contractors, subcontractors, and 
material and service suppliers. They’re all located in the 
Richmond area. AGC’s purpose is to promote the common



20

interest [15] of the industrial and commercial contract­
ing industry in Virginia. In addition to their work in 
the private sector, AGC’s members are extensively en­
gaged in providing high quality construction services to 
public bodies at the lowest reasonable cost, including serv­
ices to the City of Richmond.

One of AGC’s principal aims is the establishment of 
fair and nondiscriminatory competitive bidding practices 
for public construction projects. Although proposed or­
dinance number 83-69 only came to AGC’s attention 
within the last several days, they’ve asked me to explain 
to you their legitimate reasons for opposing passage of 
the ordinance and for urging that it be defeated.

Simply stated, AGC believes the ordinance represents 
bad policy and may be unlawful. AGC is opposed to any 
classification or preference based on race in the awarding 
of public construction contracts. AGC and its national 
affiliate, the Associated General Contractors of America, 
are on record in many forums as opposing racial discrimi­
nation as a matter of public policy. It is an axiom, how­
ever, of simple supply and demand economics that institu­
tionalized restriction of access to the bidding process on 
public construction projects will result in higher construc­
tion costs to the public body and to its taxpayers. The 
effect of this ordinance will be to exclude nonminority 
contractors and subcontractors from a significant portion 
of the total dollar [16] value of Richmond’s construction 
projects.

Based on experience, we believe the passage of this 
ordinance will necessarily result in higher bids, because 
the unrestricted forces of competition will not be avail­
able to keep bid prices down. In addition, the ordinance 
will have the effect of creating an unfair competitive 
advantage for nonminority contractors by excluding them 
from bidding on a substantial portion of public contracts. 
As I said, AGC strongly believes that unrestricted com­
petitive bidding should be used on public contracts to in­
sure free access to the bidding process for all potential 
bidders.



21

This is not a Court and I’m not here to make a legal 
argument to you, but I do want to express my concern 
that in addition to the unfortunate policy that would be 
established by this ordinance, it may well be unlawful 
under Virginia law. Our Supreme Court has said in a 
number of cases, and I quote, “ that a municipal corpora­
tion possesses and can exercise only those powers granted 
in express words by statute or charter, those necessarily 
or fairly implied or incidental to the powers expressly 
granted, and those essential to the declared object and 
purpose of the municipal corporation. Not those that are 
simply convenient, but those that are indispensable.”

Moreover, if an asserted power has not been expressly 
granted, or even if it’s doubtful, the doubt must be [17] 
resolved against the exercise of the power. This doctrine 
is commonly known as the Dillon rule. In an opinion 
dated February 23, 1979, concerning the proposed human 
rights code for the City of Richmond, the Richmond City 
Attorney stated, and he cited the Dillon rule, “ in the 
absence of a countervailing State policy, such as that of 
the Virginia Fair Employment Practices Act— excuse me, 
Contracting Act, a political subdivision can enact no re­
quirement impairing competition in the letting of its 
contracts.”

The sense of this opinion was recently confirmed in an 
October, 1982, opinion of the Attorney General of Vir­
ginia, regarding certain amendments to the Human Rights 
ordinance of the County of Fairfax. I can have copies 
of these documents available, if you wish. The Virginia 
Fair Employment Contracting Act not only fails to pro­
vide any such countervailing public policy, but specifically 
states in Section 2.1-376.1, and I quote, “ in the award­
ing of contracts, no contracting agencies shall discrimi­
nate because of race, religion, color, sex or national ori­
gin.” In Section 2.1-378 of the State Code, it is specifi­
cally provided that nothing in that portion of the Code 
shall be deemed to empower any agency to require any 
contractor to grant preferential treatment to or dis­
criminate against any individual or any group because



22

of race, color, religion, sex or national origin, on account 
of any imbalance between the racial makeup of the con­
tractor’s [18] employees, compared with the number or 
percentage of such race in any community or in the 
State.

Moreover, the Virginia Public Procurement Act, which 
is found in Chapter 7 of Title 11 of the Virginia Code 
specifically precludes public bodies in the Commonwealth 
from excluding qualified vendors from access to public 
business, and provides that competition in procurement 
is to be sought to the maximum extent feasible. So, the 
proposed ordinance, at least in my view, appears to be 
in conflict with established State law, and Pm not aware 
that the City of Richmond has obtained specific approval 
from the General Assembly for such an ordinance.

Moreover, it appears to be in conflict with the City’s 
existing procurement ordinance, contained in Chapter 
24.1 of the City Code. In Article 8 of that chapter, dis­
crimination in the award of contracts is specifically pro­
hibited. “ In the solicitation or awarding of contracts, the 
City shall not discriminate because of race, religion, color, 
sex or national origin of the bidder or offeror.”

MAYOR WEST: Sir, could you summarize in a
minute?

MR. WATTS: Yes, I am concluding right now.
MAYOR WEST: All right.
MR. WATTS: I am also aware of at least two re­

cent instances in which the Alabama Supreme Court and 
a [19] federal Court in Ohio had struck down similar 
commercial set-aside provisions as being unconstitutional 
reverse discrimination. It’s my understanding that in 
those cases, the ordinances offered were not able to with­
stand the constitutional test of strict scrutiny, which is 
applicable to any governmentally established classification 
or preference based on race.

For these reasons, AGC must oppose the proposed or­
dinance, and respectfully urges that it be defeated. 
Thank you very much for providing me an opportunity



23

to appear before you tonight. I’ll be happy to attempt 
to answer any questions you might have.

MR. GILLESPIE: Mr. Mayor?
MAYOR WEST: Mr. Gillespie.
MR. GILLESPIE: While Mr. Watts is here—
MS. WAKE: We need the rule suspension.
MR. DUFFEY: 11 o’clock. Mr. Gillespie?
MR. GILLESPIE: Aye.
MR. DUFFEY: Mr. Kemp?
MR. KEMP: Aye.
MR. DUFFEY: Mr. Kenney?
MR. KENNEY: Aye.
MR. DUFFEY: Mr. Leidinger?
MR. LEIDINGER: Aye.
MR. DUFFEY: Ms. McDaniel ?

[20] MS. MCDANIEL: Aye.
MR. DUFFEY: Mr. Marsh?
MR. MARSH: Aye.
MR. DUFFEY: Mr. Richardson?
MR. RICHARDSON: Aye.
MR. DUFFEY: Ms. Wake?
MS. WAKE: Aye.
MR. DUFFEY: Mr. Mayor?
MAYOR WEST: Aye.
MR. DUFFEY: The ayes have it.
MR. GILLESPIE: Mr. Mayor?
MAYOR WEST: Mr. Gillespie.
MR. GILLESPIE: This is— we’ll all try together to

come to oneness of this community. This is very much 
in keeping with that. But on the other hand, I sure am 
getting tired of spending all our City’s time and money 
in Court, and I think you can see where this might be 
headed. I know this is not a Court of law, and I don’t 
want us to get into a legal argument. The legality of 
this thing is something that I have been wrestling with 
myself, trying to decide in my own mind whether or not 
we’re going to end up spending more of our money in 
Court. And I appreciate it if Mr. Hefty would maybe 
address some of Mr. Watts’ legal concerns.



24

MR. HEFTY: Mr. Gillespie, regarding the State law
issues, whether this is legal under Virginia law, Mr. 
Watts [21] did not cite a Supreme Court case from the 
Virginia Supreme Court, because there isn’t one that’s 
addressed it. And the problem that we have in many 
areas of local government law is that there’s different 
Supreme Court cases on the subject, and we have a hard 
time deciding exactly what the law is.

The General Assembly has had these issues before 
them. They have not resolved them by passing legisla­
tion that might resolve the issue clearly on its face. The 
Public Procurement Act, which is the act that allows us 
to— in effect, requires us to follow its procedures, has 
two provisions which I think are relevant. 11-44, which 
we have adopted in our Public Procurement Act, says 
that discrimination shall not be allowed on the basis of 
race. Section 11-48 says that all public bodies may estab­
lish programs consistent with all provisions of this chap­
ter to facilitate the participation of small businesses and 
businesses owned by women and minorities in procure­
ment transactions. Now, what “ facilitates the participa­
tion of businesses owned by women and minorities in 
procurement transactions”  means exactly has not been 
determined. I don’t think that the anti-discrimination 
provision applies to this ordinance, due to the fact that 
it’s remedial legislation. I don’t view what we’re doing 
as being discrimination. The Supreme Court when it had 
the follow up case before it in 1980, when it adopted the 
ten percent minority set-aside, dealt with the same issues, 
that higher [22] bids would be required to nonminorities 
who did not engage in any intentional discrimination on 
their own, would be subject to this and might lose bids.

All of those issues were addressed, and the U.S. Su­
preme Court didn’t have any problem with them. Now, 
Mr. Leidinger’s point is well taken; I don’t know of any 
case where 30 percent has been addressed at all. And I 
could not guarantee that this would win in Court. But, 
as far as being able to defend it, I feel very comfortable



25

with defending it under both Virginia law and federal 
law. Anything these days are subject to—

UNIDENTIFIED: Mr. Mayor?
MR. GILLESPIE: I haven’t yielded the floor yet. We

felt comfortable— I wasn’t here, but apparently this Body 
felt comfortable— here we are, we find ourselves estab­
lishing law for the whole country. I just hate for us to 
put ourselves in that position, again. I mean, we’re go­
ing to run out of money before long. I don’t know— 
believe me, I am not trying to kill that thing, Mr. 
Richardson.

UNIDENTIFIED: I can see that.
MR. GILLESPIE: I haven’t yielded. Would it hurt 

to have a two-week or 30-day delay, so that we could 
have an executive session and discuss this thing, the legal 
aspects of it. Maybe even with outside counsel. And 
when I say that, I’m not doubting Mr. Hefty’s judgment 
or integrity, but there [23] are people who are experts 
in this field, I assume, and, you know, I just think we 
might be in the area where we might want to have a 
little more advice. Have an executive session to discuss 
this legal matter and see where we are.

MR. MARSH: Mr. Mayor?
MAYOR WEST: Mr. Marsh, ask for the floor.
MR. MARSH: I would oppose Mr. Gillespie’s sugges­

tion of continuance, and I think that Mr. Hefty’s legal 
analysis was correct. We have extremely competent legal 
counsel representing the City, and I think that it’s not 
quite fair to suggest that we don’t. And I would oppose 
any continuance. I think that based on discussion and a 
study of the appropriate cases, the Richmond ordinance 
that is proposed is clearly constitutional. It is within 
the confines of the cases of the Supreme Court of the 
United States, and I have no doubt whatsoever that it’s 
legal, and I would urge Council not to postpone this mat­
ter. I might suggest that the only thing that would result 
from the kind of procedure that Mr. Gillespie recom­
mended would be delay and perhaps further legal expo­



sure because of the differences that might exist on this 
Council on this matter.

MR. GILLESPIE: Was it a 30-day delay, so that—
(Inaudible discussion.)

[24] MR. MARSH: The paper has already been de­
layed some—

MR. GILLESPIE: Yes, and I understand why it was
postponed when it was pulled one time before because of 
legal concerns. Now, I have not been privy to the legal 
discussions about this. All I’m saying is I don’t believe 
that a 30-day delay so that I, and maybe anybody else 
who worried about it, can satisfy themselves with the 
legal aspects of this thing. As it stands now, you put me 
in a position to have to vote against something that I’m 
in favor of, because I’m not sure what kind of legal 
grounds you stand on. I don’t think a 30-day delay is 
going to hurt your program at all.

MR. MARSH: I would oppose— as co-sponsor, I would
oppose any delay.

MAYOR WEST: Mr. Richardson.
MR. RICHARDSON: This would constitute the third

— Mr. Gillespie, while I certainly would want to believe 
any honorable intent you might have, the results may be 
to further inflame any differences that are out there 
lingering, give them an opportunity to come to a head, 
give them an opportunity to show those spaces of further 
dividing this City. You and I, even with all the books 
of the Supreme Court, may ultimately differ on this issue. 
So, we’re not going to resolve it, I don’t think, regard­
less of how much time we go over it. We have had a 
number of sessions with Mr. Hefty, [25] going over— as 
I said, Mr. Gillespie, this matter is being deferred, or 
would be deferred three times, and within that time 
period, any decent level of interest would have prompted 
your investigation and you could have had the same dis­
cussions with Mr. Hefty as the co-patron of this paper, 
and myself as a patron.

Mr. Hefty— and I’m not going to question his exper­
tise. I think he is as qualified as many other attorneys

26



27

that might be able to advise us, and I’m going to support 
this paper and urge that it not be deferred, on the weight 
of his legal advice. And he has advised us, based on pull­
ing a number of cases and comparing them, that this is 
legal. And that remedial action in this case, in this in­
stance, does not constitute reverse discrimination. And 
I think the statistics would embarrassingly reflect the 
need for such a paper.

MR. MARSH: Mr. Mayor?
MAYOR WEST: Mr. Marsh.
MR. MARSH: I have some questions of the gentle­

man, if we can let him go after we finish. Would you— 
you indicated that one of the organizations you repre­
sented, Associated General Contractors, had 600 general 
and subcontractors in Virginia?

MR. WATTS: That’s correct.
MR. MARSH: What number of that 600 would be 

black?
[26] MR. WATTS: At the moment, I think the answer 
to that question is none. There have been some in the 
past. There are none now.

MR. MARSH: Now, the other organization you rep­
resent, the Builders Exchange of Richmond, 675 general 
and subcontractors in the Richmond area. What of that 
number would be black?

MR. WATTS: Maybe I can clarify that. First of all,
I don’t represent them. I was simply asked to tack them 
on in my remarks.

MR. MARSH: Well, the same question pertains.
What number would be black?

MR. WATTS: I don’t know the answer to that. I
am advised there are black members of the Builders Ex­
change. I don’t know how many.

MR. MARSH: But, would you say very, very few?
MR. W ATTS: I have no idea.
MR. MARSH: All right. Now, of the 130 of the

Associated General Contractors in the Richmond area, 
how many of those are black?



28

MR. WATTS: Well, as I said, I don’t think there 
are any black members of the organization now, so that 
would include those in the Richmond area.

MR. MARSH: Do you—have you contacted any mi­
nority organizations or minority contractors?
[27] MR. WATTS: No, sir. I represent the Asso­
ciated General Contractors.

MR. MARSH: Okay. No further questions.
MAYOR WEST: Mr. Kenney.
MR. KENNEY: Mr. Watts, you indicated in your 

presentation in opposition to this particular paper, that 
one of the reasons why you on behalf of your clients 
were, because based on experience—bad experience, I 
believe. Did you say that? Based on—

MR. WATTS: I said based on experience.
MR. KENNEY: Based on experience. You’re speak­

ing specifically in Richmond?
MR. WATTS: No, sir. I’m speaking generally. That

is, any time you restrict access to the bidding process 
and reduce the number of bidders who are able to make 
a bid, in my view and in the view of my clients, the 
simple laws of supply and demand will necessarily raise 
the price of the project.

MAYOR W EST: Are there further questions?
MR. LEIDINGER: Yes, sir, I had a question, Mr.

Mayor.
MAYOR WEST: Mr. Leidinger.
MR. LEIDINGER: Mr. Mayor, Members of Council.

Mr. Gillespie, I think the answer to your question is 
pretty simple. At least as I see it. Mr. Hefty’s put his 
name on the [28] paper and said it’s legal, period.

MR. GILLESPIE: Mr. Leidinger, Mr. Hefty also
said that he would not guarantee a victory in Court.

MR. HEFTY: Mr. Gillespie, I said I could not guar­
antee a victory in Court in just about any case.

MR. LEIDINGER: Excuse me, Mr. Mayor. I thought 
I had the floor.

MAYOR W EST: All right, Mr. Leidinger.



29

MR. LEIDINGER: Mr. Hefty’s put his name on this
paper and he said it’s legal. The person at the podium, 
Mr. Watts, has indicated that in his opinion, he doesn’t 
think it is legal. I would suspect that AGC here in Rich­
mond and here in Virginia, and I would just offer this 
as a speculative thought, would probably seek a declara­
tory judgment, seek an injunction, what have you, if this 
ordinance were adopted tonight.

MR. RICHARDSON: Only if you encourage them.
Only if you’re going to encourage them tonight. If you 
want to make that suggestion, you can take the floor and 
go ahead and ask them to.

MAYOR WEST: Mr. Leidinger, finish your com­
ment, please.

MR. LEIDINGER: Thank you sir. I suspect that
there may be a declaratory judgment sought, there may 
be an injunction sought by AGC, as AGC has done in 
other instances, [29] so it wouldn’t be that novel or that 
new, if you would. On the other hand, I suspect that the 
ordinance, if acted upon tonight, is probably going to 
get the same number of favorable votes as it would have 
gotten two weeks ago, or as it might get two weeks from 
now. For my part, I’m prepared to act on the paper 
tonight, and if there are differences in interpretation of 
the law and who is right legally, I suspect there are other 
forums for us to find that out, and we’ll find it out fairly 
shortly, if actions are initiated.

MAYOR WEST : Mr. Richardson.
MR. RICHARDSON: I just had a question for Mr.

W citts.
MR. WATTS: Yes, sir.
MR. RICHARDSON: Mr. Watts, you quoted phrases

like common interest and high quality and impairing the 
contract process, and yet, this City is 50 percent black 
and 50 percent white, and you represent an organiza­
tion admittedly with no black participation whatsoever. 
I’m not in a Court and I’m not going to challenge you 
here tonight, but my conscience would advise you to take 
a copy of this ordinance back to your organization.



30

MAYOR W EST: Are there further questions?
MS. WAKE: Mayor West. Mr. Richardson, I think

your remarks are highly out of order.
MR. RICHARDSON: Out of order? How would you—

[30] MAYOR WEST : Mr. Richardson.
MS. WAKE: I think they’re ridiculous. I think when

you say 50 percent black and 50 percent white in this 
City, it doesn’t mean that we’ve got 20 percent black and 
20 percent white contractors, or 20 percent white and 
20 percent doctors. So, you— to me, there’s no relevancy 
to what you’re saying, and I think that’s unfair.

And I have a real problem with the paper, because I 
reject this notion that because you’re asked to go back, 
as this lovely lady said, four or five times, that that’s 
because she’s a minority contractor. I had that same 
experience as a businessperson, and it wasn’t because of 
my race. It’s because that’s the way the system works, 
and that’s the way you have to work to get in. And 
finally, you do get in the door. But, you don’t, when you 
become a retailer, you know, walk in and demand the 
respect that the head of Miller and Rhoads and Thal- 
himers do. And it’s the same thing with anything else.

And this man has made a valid point. You’ve got to 
have— it’s going to be more costly. It’s going to be ter­
rifically more costly. And the thing that bothers me in 
situations like this, when you try to improvise and man­
date by law what you think is fair and which I would 
like to see, too— I would like to see minority participa­
tion. But, I’ve known cases where what do you do? You 
get some smart white man [31] that gets a black front 
and he’s the one that’s pulling it all in. So, I don’t 
think that we ought to think that we’re going to pass 
a paper like this and change the world, which you and 
I both would like to see. It just isn’t done.

But, I do believe that when you get out there and you 
work hard, that whether you’re black or white, you are 
going to get a part of the pie.

UNIDENTIFIED: Well, we want to thank you for
that.



31

MAYOR WEST: Is there anyone else to speak in
opposition to this paper? May I see the hands of those 
who will speak in opposition? All right. Four, five. All 
right. Come forward, please. So that we may save as 
much time as possible, will those of you who are going 
to speak further, come down and take a seat on the 
front row, please?

MR. BECK: Mayor West, City Council, my name is
Richard Beck. I’m vice president of a local Richmond 
plumbing, heating, cooling contractor. I am speaking 
tonight in behalf of the Richmond Plumbing, Heating, 
Cooling Contractors. I am the president of that associa­
tion. I am also speaking as a representative of the 150 
member Virginia State Plumbing, Heating, Cooling Con­
tractor Association.

Competitive bidding without restriction insures con­
struction of public projects at the lowest possible cost. 
At a time when public interest demands official respon­
sibility [32] and spending restraints, it is unreasonable 
to carry forward programs which gain less than the full­
est value in the use of citizens’ tax dollars. To the ex­
tent that any City program or ordinance impedes the 
competitive process, its construction costs will increase 
ever higher.

Based on the research of our national plumbing, heat­
ing, cooling contractors association, they have found that 
based on public and private testimony, excessive cost, 
brokering of business and creation of fraudulent firms 
have occurred under this type of ordinance. Also, they 
have found that minority firms involved in this type of 
program have been mostly unsuccessful later in compet­
ing competitively in the private sector.

We, as plumbing, heating, cooling contractors, are very 
concerned by this proposed ordinance, in that instead 
of a general contractor awarding plumbing, heating, cool­
ing work to a low bidder, he must consider awarding to 
a minority contractor, who may not be the low bidder, 
in order to meet the requirements of this ordinance. 
Therefore, the general contractor could have a higher bid



32

price due to not using the low bidders on 30 percent of 
the work.

We also question whether this ordinance has been re­
searched to ascertain if minority contractors are avail­
able and qualified to perform City work of the percent­
ages and magnitude proposed in the ordinance. Under 
State law, it [33] is unlawful for any firm, person, cor­
poration, to engage in or offer to engage in general con­
tracting or subcontracting in this State on a job of 
$40,000 or more unless he has been duly licensed under 
provisions of Title 54, Chapter 7, of the Code of Vir­
ginia. This is a class A license contractor requirement. 
We question the availability of minority contractors to 
meet this requirement. In addition, are the minority con­
tractors available in sufficient numbers to perform the 
amount of City work involved? We question if minority 
contractors are available even to five to ten percent of 
City construction work.

In conclusion, we feel the ordinance goes against the 
State law of competitive bidding, and the City practices 
of purchasing on competitive basis on public construc­
tion work. We strongly recommend that you, as City 
Council, vote against this proposed ordinance 83-69. 
Thank you.

MAYOR WEST: Next speaker, please.
MR. SINGER: Mr. Mayor and Distinguished Mem­

bers of the Council, my name is Mark Singer. I’m rep­
resenting this evening the Virginia Chapter of the Na­
tional Electrical Contractors Association and the Rich­
mond area Municipal Contractors Association, a com­
bined group of nearly 200 contractors that perform work 
in the Richmond area and throughout other parts of the 
State. I learned a lot, Mr. Mayor, about grants early 
on in the evening. In that [34] respect, I’m going to try 
and be as brief as I can in addressing this issue.

I think what Council has seen here tonight is a very 
grave concern on the part of many of us in the private 
sector concerning the proposal you have before us. Es­
sentially, what we have here is a force-feeding type of



83

approach, with an arbitrary number of 30 percent tacked 
on. My clients have a concern, and essentially that con­
cern is three-fold.

We do not believe that if this ordinance were passed, 
the 30 percent rule could be met locally. We believe 
that the quality of construction would suffer as a result 
of mandating contractors to perform work on certain 
contracts, and we believe that as a result of this reduced 
competition, construction costs in the City of Richmond 
would go up.

What is the requirement now? Mr. Mayor, I have to 
tell you, quite frankly, and Members of the Council, I 
have been unable to determine if, in fact, there is a re­
quirement now, although I did hear Mr. "Todd make ref­
erence to somewhere between seven and ten percent. Is 
the City comfortable with the 30 percent requirement 
without a fair and objective showing that any previous 
lower rate of set-aside has worked, and worked produc­
tively? Are the City and local contractors going to be 
put in a position of having to scour the State and per­
haps even look outside of the State to be able to comply 
with the [35] 30 percent set-aside requirement? I can 
tell you, gentlemen and ladies, from experience, that our 
contractors have already had to do that, and have had to 
have looked as far as Maryland in the past in an effort 
to comply with these types of provisions.

In the final analysis, what is it that Council is really 
trying to accomplish by the adoption of this ordinance? 
I think clearly, to successfully bring disadvantaged con­
tractors into the mainstream of the construction industry 
in the Richmond area. We don’t believe that this force- 
feeding approach is the way to accomplish that goal. In 
fact, we believe the opposite may take place.

Contractors overextending themselves are a major cause 
of bankruptcies in this country, and I can tell you that 
the subcontractors that I represent are suffering greatly 
from bankruptcies. Set-asides tend to posture contractors 
in such a way so as to bid jobs that perhaps they really 
may not be able to perform. It’s an apple sitting out



34

there, Members of Council, and it’s one there’s a great 
temptation to pluck. There’s an illusory means of in­
creasing minority participation in the construction mar­
ket place. If the minority contractor cannot perform, 
the other contractors on a job suffer, the City suffers, and 
as a result, so do its residents.

I’m almost through, Mr. Mayor. We believe it [36] 
would be in the best interest of the City for this Council 
to vote against any set-aside, particularly one of the 30 
percent magnitude. There are other options that we 
think may work better, certainly some other ways to 
consider the problem.

I would only like to add one thing, Mr. Mayor, in con­
cluding my information. I have represented construction 
groups for about ten years, and have lobbied in the Gen­
eral Assembly for an equal number of years on their 
behalf. It’s my understanding in terms of State law, 
that State law expressly prohibits set-aside contracts for 
State construction. I must admit some vagary in terms 
of how the Dillon rule applies in the situation we’re 
faced with tonight, but I am quite confident that the 
State law does prohibit the set-aside provision of public 
contracts. Thank you for your time.

MR. MARSH: Mr. Mayor?
MAYOR WEST: Mr. Marsh.
MR. MARSH: I have one question for Mr. Singer.

Of the 200 contractors, chapters you represent, how many 
are black, minority owned?

MR. SINGER: Mr. Marsh, I do not have the informa­
tion for the Municipal Contractors Association. I would 
certainly be happy to obtain that for you promptly. For 
the Electrical Contractors, I have more of a full-time 
position with them. We have two contractors— we have 
three minority contractors, two black contractors and we 
have one application [37] pending for a minority con­
tractor.

MR. MARSH: Out of how many?
MR. SINGER: Out of 81.



35

MR. MARSH: 
the other group? 

MR. SINGER: 
MR. MARSH: 
MR. SINGER: 
MR. MARSH:

And how many would you say are in

I really do not know, sir.
You have no idea, whatsoever?
No, sir.
Thank you.

MAYOR WEST: Are there any more questions? The
next person to speak in opposition.

MR. MURPHY: Mayor West and Members of Coun­
cil, my name is Patrick Murphy. I am representing the 
American Subcontractors Association. We are opposed 
to this bill because we don’t think it would be workable. 
To give you a, little statistics, since we seem to be quoting 
them tonight, the latest Bureau of Census survey of mi­
nority business enterprises under the construction head­
ing found that there were 4.7 percent of all construction 
firms in America are minority owned. Forty-one percent 
of that 4.7 percent are located in five states: California, 
Illinois, New York, Florida and Hawaii. The remaining 
59 percent of that 4.7, or 2.8 percent of all construction 
firms, are divided between the remaining 45 states.

Now, what this means to us is that we need a [38] 
subcontractor that is a minority contractor. There’s not 
very many around. The problems our members and the 
AGC members will have are as follows. First off, we 
have a problem of finding one or two to bid a project, 
to bid specific areas of work. We have trouble finding 
firms that are qualified and experienced to do the work. 
We have trouble finding firms that are financially capable 
of supporting the cash flow on major projects. We have 
trouble finding firms that are bondable. We have trouble 
finding firms that have the proper insurance require­
ments that can meet the project requirements.

We have had trouble in the past finding unreasonable 
pricing arrangements when they had set-asides, and I 
would like to give you an example of one case that I am 
personally involved with. A company set aside to meet 
their requirement approximately $195,000 worth of work 
on a waste water plant. Five minority firms were invited



36

to bid. Three never replied. One wanted to work only 
on a cost basis because he wasn’t sure he could estimate 
correctly that volume of work. The one who did turn 
in a price for this $195,000 worth of work was $490,000, 
and was from out of State.

One problem we also have is that if we do go with this 
set-aside on any type of work for the City, we think it 
should be a City firm, or at least a State firm. In many 
cases, to find a qualified minority firm to do large proj­
ects or parts of large projects, we would have to go out­
side of the [39] State. We think that in the City, we 
should try to keep City work at least in Virginia. We 
feel that 30 percent is a very unreasonable amount to try 
to obtain. Does this bill—which we don’t have a copy of 
— one other thing we have a problem with is, we don’t 
know what we would do if we couldn’t find a person or 
firm that was capable of bidding the work. Does that 
mean if we couldn’t find 30 percent, we wouldn’t be able 
to bid the work? That’s all I have. And I know Mr. 
Marsh is going to ask me a question about how many of 
our members are minority.

MR. MARSH: Correct.
MR. MURPHY: But, I will tell you this—
MR. MARSH: No. Answer the question first.
MR. MURPHY: I don’t know, Statewide. In the

Richmond Chapter, I know of none. But, I can tell you 
how many have been turned down, none. Because, since 
I’ve been chairman of the membership committee, I have 
had none ask to become members.

MR. MARSH: How many members do you have?
MR. MURPHY: In Richmond?
MR. MARSH: Yes.
MR. MURPHY: Eighty.
MR. MARSH: And how many do you have State­

wide?
MR. MURPHY: I’m not sure, Statewide.
MR. MARSH: I mean, about how many people?

[40] MR. MURPHY: I would say probably 150 to
200.



37

ME. MARSH: And you don’t know of any minority?
MR. MURPHY: I don’t know anybody in the other

chapters, only the Richmond chapters. But, there have 
been none turned down.

MAYOR WEST : I gather from your presentation that
you are not conversive with all of the provisions. Mr. 
Richardson or the clerk may want to provide you with a 
copy, because some of the questions that you asked are 
addressed in the paper, itself, and you need to get a 
copy of that paper.

MR. KENNEY: Mr. Mayor?
MAYOR WEST: Mr. Kenney.
MR. KENNEY: You indicated in your presentation

of— as you perceive this particular ordinance would cre­
ate problems insofar as bidders and what have you. In 
involving an employment civil rights act and so forth. 
I have heard that same argument in the past that mi­
norities couldn’t qualify for jobs, they couldn’t qualify for 
certain higher educational institutions, they couldn’t 
qualify for promotions. So, what you’re saying is the 
same thing I heard during the ’60’s, that minorities, you 
just can’t find qualified people. So, I think this is con­
sistent with most individuals who are opposed to affirma­
tive action, equal employment opportunities and what 
have you, and I appreciate—
[41] MR. MURPHY: I would not agree with you on
that. The biggest problems we’ve had are the bonding 
and the financial capabilities, not the fact that we didn’t 
want to use them. Thank you.

MAYOR WEST: The next person to speak in oppo­
sition, please.

MR. SHUMAN: Mr. Mayor, Members of Council, I
am here— I’m A1 Shuman. I am here on behalf of the 
Central Virginia Electrical Contractors Association, and 
also a new organization just formed in the City for the 
Richmond area. It’s a Richmond chapter, actually. Pro­
fessional Contractors Estimators Association. I can stand 
up here for the next 15, 20 minutes and repeat every­
thing you’ve just heard. We’re going to get nowhere



38

fast. I sat here tonight from 7 o’clock this evening until 
now, 11:25, and listened to everything that you people 
had to go through. I admire you.

But, now that I stand here, Mr. Marsh, you asked a 
question before, how many members are black that be­
long to all these organizations. The company I work for 
belonged to all these organizations. Nobody that I know 
of, black, Puerto Rican or any minority, has ever been 
turned down. They’re actually sought after to join, to 
become part of us. Maybe we can help them and, there­
fore, help ourselves.

I am a minority, not recognized by the United States, 
I guess, because I’m Israeli. I feel I’m a minority [42] 
in many cases, but I also have the ability and aggressive­
ness to make something of myself, and I honestly speak 
for the two organizations that I sit here and I’m shaking 
a little bit because I heard you say, well, how many are 
black that belong. Well, quite frankly, I, myself, am on 
the membership committee of the Estimators Association. 
I went out and we got participation. How did we get it? 
Why don’t you help us get members. We’re looking for 
it. We ask for it. We want them to join us. The eco­
nomic membership fees are not great. They’re very rea­
sonable. But, they don’t come out. Are you trying to 
push them into something that they’re not capable of 
doing? I don’t think so. Do you want them to benefit 
themselves? Yes, you do.

Let’s address some of the things you talked about to­
night. You need money for additional well-worth causes. 
You’re concerned, our City Manager’s concerned, that the 
bidding process might cause some of these projects to go 
over the case by limiting the amount of bidding that’s 
going to be done by certain companies because they can’t 
get minorities to join them. Whether they’re available— 
if they are, I’d like to see that list of minority firms that 
are available in the City. Especially, to help us out when 
we bid. If they’re not available and the bidding price 
goes up, would that not limit the amount of programs



39

you will be able to do this forthcoming year. I think it 
will.
[43] Bidding one hundred percent open to the public 
means one hundred percent participation if they want to. 
Bids are opened publicly. They’re available for anyone. 
In most cases, you can require naming the subcontractors 
or the low bidders going in under the general, if that’s 
important to you. But, the most important thing to me, 
and I think to the public, is to have the most economical 
projects built today at the lowest possible cost, so it will 
enable you and your peers and my peers and your con­
stituents to get as many projects under their belt and 
built in this fiscal year and in the fiscal years to come.

We open our arms and invite you and your friends 
and your knowledgeable constituents that are in this 
contracting firm to join our organizations. Make appli­
cations. We are in no way, shape or form standing here 
today, or ever will in the future, or have in the past, 
prohibited a minority from joining our organization.

I am just summing up. We have to, for the betterment 
of the public in general, ask you to defeat this motion 
on the floor tonight and to find some other way, so we 
don’t hurt the total community by having projects go 
over budget. By not being able to do all you want to 
do for the public. This is not the answer. There must 
be another way. I will answer any questions you have.

MR. MARSH: Mr. Mayor?
[44] MAYOR WEST: Mr. Marsh.

MR. MARSH: Mr. Shuman, I appreciate your state­
ment, and we’re going to help you in your effort to get 
some black members. But, I still have to ask you the 
questions. In the Central Virginia chapter, about how 
many members are there, would you say?

MR. SHUMAN: In the—
MR. MARSH: Altogether.
MR. SHUMAN: In the Professional Estimators As­

sociation, here in the Richmond chapter, there is now 60 
members. One is black.

MR. MARSH: One of out of sixteen?



40

MR. SHUMAN: One out of sixty.
MR. MARSH: Sixty. Okay. In the Central Virginia

chapter, what’s the total number of members?
MR. SHUMAN: I believe there’s 45, and at this 

point, I don’t know how many— I believe there’s one 
minority.

MR. MARSH: Thank you, sir.
MR. SHUMAN: Mr. Marsh, may I ask you a ques­

tion? How many black electrical firms are there in this 
City?

MR. MARSH: There will be more in the future than
there are now.

MR. SHUMAN: We hope so, because we’d like to
have them.
[45] MR. KENNEY: Mr. Mayor?

MR. MARSH: Mr. Kenney.
MR. KENNEY: Gentleman— I can’t recall your

name— do you reside within the boundaries of the City 
of Richmond?

MR. SHUMAN: I live in Henrico County right now.
I’m moving back.

MAYOR WEST: Thank you so much. I know we
have hashed this over quite a bit. We talked about the 
legality of the paper. But, I guess the thing that con­
cerns me more than anything else that I’ve heard here 
tonight is insinuations that minority contractors inflate 
the bidding process, that their performances would be 
conducive to not first-class work. And I don’t think that 
this paper is designed to perpetuate that kind of defi­
ciency. I’m just speaking as one person.

I am more disturbed by that kind of attitude than I 
am about the legality of this paper. Sure, I want it 
legal. I want it morally right. But, I would say the 
attitudes of persons who have to participate in this proc­
ess also have to be morally right. And, I’ve heard sprin­
kled throughout several presentations the idea that mi­
nority participation would result in inflation. It may, 
but that’s not a unique situation. That minority partici­
pation would result possibly in work not being first class,



41

that’s not unique to minorities. And I would say to all 
persons concerned [46] that maybe that’s the purpose for 
this paper. That we have not had the kind of attitude in 
the market place that was needed.

Clerk, call for the question, please.
MR. MARSH: Just, there are some remarks I would

like to make, Mr. Mayor, if you don’t mind. I think all 
the reasons that we have heard tonight urging the de­
feat of this particular paper have been considered before 
and rejected by Courts, and I think those arguments are 
without merit. There is some information, however, that 
I want to make sure we put in the record. I have been 
practicing law in this community since 1961, and I am 
familiar with the practices in the construction industry 
in this area, in the State, and around the nation. And I 
can say without equivocation, that the general conduct 
in the construction industry in this area, and the State 
and around the nation, is one in which race discrimina­
tion and exclusion on the basis of race is widespread.

I think the situation involved in the City of Rich­
mond is the same, and I would like to give the Clerk 
a copy of the listings of the contracts for the past five 
years awarded by the City of Richmond. Contracts to­
talling over 124 million dollars. And less than one per­
cent were given— were awarded to minorities. I think 
the question of whether or not remedial action is re­
quired is not open to question.

I think this is a good paper. There’s enough [47] flexi­
bility to permit the paper to work, and I can appreciate 
all of the arguments made by those who have opposed this 
paper. But, I can say that they were made in other 
places and other times whenever papers like this have been 
proposed. They were made when the City adopted the 
requirement for the CDBG— the requirements, and our 
experience has shown in that area that our percentage 
has exceeded the numbers specified and the problems an­
ticipated had not been realized. The disease is not as 
bad as the anticipation and the dread. And, I would



42

say that this paper is going to work. It is legal. Let’s 
give it a chance.

MR. DEESE: Mr. Mayor?
MAYOR W EST: All right, Mr. Deese.
MR. DEESE: Mr. Mayor, Members of the City Coun­

cil, I would concur with Mr. Marsh’s statement in it’s 
entirety. I spent my early years in government work­
ing for the City of Pittsburg, my home town, working 
for the Mayor’s Office and the Human Relations Com­
mission. And, racial discrimination in the area of con­
tracting has not changed that terribly much since those 
days in the mid ’60’s. And I would dare say, Mr. Mayor, 
Members of Council, that the opportunities for minority 
contractors have not improved that greatly in the 18 
years since I left the City of Pittsburg. And I would 
dare say that an improvement can be made here in this 
particular area.
[48] MAYOR W EST: Any further discussion?

MR. KEMP: Mr. Mayor?
MAYOR W EST: Mr. Kemp.
MR. KEMP: I didn’t hear the same message from

many of the speakers tonight that apparently came across 
in the minds of some of the other Members of Council. 
I felt that every presentation was fair, was aboveboard. 
It spoke to the point. It indicated that the minority con­
tractors were just not available. There wasn’t a one that 
gave any indication that a minority contractor would 
not have an opportunity, if he were available. I just—  
I hate to see this Body criticized— those people who came 
here in good faith tonight, to express hope that minority 
contractors would be available. Any time you put a limit 
or a mandate, it seems to me that all you’re doing is 
exacerbating a bad situation. I would love to see more 
minority contractors here. But, those types of things 
just take time.

I think the legal points that were brought up, we’ve 
got all of the litigation that this Council can stomach, 
and I would hate to see us open a door to further litiga­



43

tion on a matter that has been expressed that they would 
love to have them. If this paper’s voted on tonight, I’m 
going to have to vote in opposition to it.

MR. RICHARDSON: Mr. Mayor?
MAYOR WEST: Mr. Richardson.

[49] MR. RICHARDSON: Mr. Mayor, Members of
Council, and to those individuals who came down to speak 
to this paper, I had hopes that the paper, itself, would 
not have evoked such conflict and disagreement on where 
we all want to go. It seems like everybody is so in love 
with each other and so hopeful and wanting everything 
to work together and want everybody to be a part of 
everything, idealistically. But, when it gets down to a 
practical matter of making it happen, there tends to 
be a lot of excuses.

Mr. Kemp, when you say these things take time, they 
can take as much time as we permit it to take. We can 
either let it happen over the next 200 years, or we can 
contribute to making it happen over the next two years, 
or three, or four.

I think the same types of things we heard tonight, 
particularly when we consider that list that was handed 
to Mr. Duffey on the contracts over the last five years, 
after talking with the City Attorney and discussing this 
matter, we found that .67 percent went to minorities. 
After realizing that and after realizing that many of the 
speakers who stood had an even lesser average of black 
participation, I am more convinced now than ever before 
that we need to contribute together in a good faith effort 
to make this happen, not let it happen over a long period 
of time. Because, some of the same things that were said 
tonight, in 1983, were [50] said in 1933, about police 
officers who would be black, about firemen who would be 
black, about teachers who would be black, about the sys­
tem crumbling because all of a sudden, someone who was 
perceived as being lesser of a human being, will be put 
in a position of responsibility. And unless we’re able— 
all of us, black and white—to be courageous enough to 
take that step and say we’re going to make this happen,



44

then it won’t happen. But, as long as we come up with 
these excuses that they’re not out there, then they won’t 
be out there. As long as we set back and say we can’t 
do it, then we won’t do it.

So, I think the Council ought to, all of us, ought to 
vote affirmatively, to get the ball rolling for all of our 
benefit. Not just a part of us, all of us. And I think 
it will work.

MAYOR WEST: Mr. Gillespie.
MR. GILLESPIE: Yes. I have a question for Mr.

Deese. I wish we were in a work session, I think it would 
be more appropriate there, but this is the only chance 
I’ve got to ask it. 1 assume, because we have policies 
that are on the books now and because it is something 
this City wants to do—

MR. MARSH: Sorry to interrupt, but, Mr. Gillespie,
your voice is tailoring down. I can’t hear you, and I 
don’t want to miss this.

MR. GILLESPIE: Pay strict attention. I know [51] 
that you will.

Apparently, you have not been able to find, at least 
locally or nearly locally, 30 percent contractors, minority. 
My question is, since, therefore, the contracts must be 
going to nonminority contractors, who are employing 
both blacks and whites, these people will now not be 
getting some 23 percent, 22 percent, whatever the num­
ber is, of the contracts that the City lets. So, therefore, 
my question is, have you assessed the impact that this is 
going to have on unemployment in our City, and particu­
larly on unemployment among blacks, which is one of our 
most significant problems. My concern being, that if we 
have to go to great lengths and long distances to attract 
minority vendors, what’s that going to do to our unem­
ployment picture in the City of Richmond?

MR. DEESE: Mr. Gillespie, the law, as I understand
it, reads specifically that if a contractor makes a good 
effort to attempt to find minorities and he is unsuccess­
ful in that attempt, then he or she can apply for the—



45

he can apply for the appropriate waivers, and those 
waivers, if granted by the department, working its way 
eventually up to me, and if I concur in it, the contractor 
is waived from that responsibility. So, he has to make 
an effort to obtain minority contractors. If he is un­
able to do that and he has made the necessary efforts, 
contacting the necessary groups and organizations, then 
the matter is waived. And, we [52] do that frequently.

MR. GILLESPIE: So what’s the impact, then, on un­
employment in our City going to be?

MR. DEESE: I can’t assess that. I don’t have—
MR. GILLESPIE: Is there going to be an impact?
MR. DEESE: I don’t know. The only thing that I

can say is, there are firms that hire minorities as labor­
ers or in some capacity, and they continue to do business 
in the area. I would assume that they will continue to 
hire minorities in some of the laboring positions they 
have in their organizations.

MR. GILLESPIE: Since you don’t know, and since
it is a problem in our City, is it worth assessing the im­
pact before we act on the bill?

MR. DEESE: I don’t think that’s necessary.
MR. GILLESPIE: Okay.
MR. DEESE: My opinion.
MR. GILLESPIE: Mr. Mayor, I expressed my reser­

vation about the legalities, privately and publicly. Sev­
eral Members of the Council have said, you know, let it 
go, let’s go to Court. Let’s decide the question.

I’m tired of going to Court. And as much as I sup­
port this, you-all have put me in a position where you’re 
going to make me vote no on something that I’m very 
much in support of. I was very much behind the Mayor’s 
minority [53] business enterprise board. I want to sup­
port those people, all they do. I may want to support this 
bill if I can be comfortable, legally, with it. But, I am 
not now. And that’s all I have to say.

MR. MARSH: Mr. Mayor?
MAYOR WEST: Mr. Marsh.



46

MR. MARSH: I just want to say, without naming
anybody, that I hope when we vote on this bill, we are 
man enough, or woman enough, to vote on it and not try 
to find excuses as a reason why we’re not going to vote 
for it. We ought to be big enough to stand up for our 
vote and not try to find excuses on a matter of this im­
portance to the community.

MR. GILLESPIE: Mr. Marsh, I’m not looking for
excuses—

(Inaudible discussion.)
MR. MARSH: Do I have the floor ?
MAYOR WEST: Yes, Mr. Marsh, but I think you

may be impugning another Councilmember’s integrity—
MR. MARSH: I am not.
MAYOR WEST1: — and I would rule you out of order.
MR. MARSH: I would like to complete my statement.

[54] MAYOR WEST: I would have to rule you out
of order if you want to impugn someone’s integrity.

MR. MARSH: I’m not impugning anyone’s integrity.
MAYOR WEST: It is the Chair’s position that if

you continue with this line of statement, you are im­
pugning, and you are out of order.

MR. MARSH: I would like to complete my state­
ment, Mr. Mayor.

MAYOR WEST: All right.
MR. MARSH: I think this is an important policy

matter for the City. And all of us are entitled to have 
our various reasons for taking the position that we take. 
And I think those of us should be willing to state those 
reasons, and I’m willing to state my reasons for support­
ing the paper. And I hope that anybody who would op­
pose the paper, would give his reasons, his real reasons, 
for opposing it.

MS. W AKE: Mr. Mayor?
MAYOR WEST: Ms. Wake.
MS. WAKE: Mr. Marsh, I assure you that as al­

ways, I’m going to give my real reasons. I oppose this



47

paper because it just strikes to me at the core of what 
this Country is all about.

Mr. Richardson, you don’t make it happen. You get 
out there and you work your butt off, and it does happen. 
That’s what this Country is all about.
[55] And I want to remind you that when you pass 
legislation like this, we could down the road experience 
something like what Miami is going through right now. 
And all of a sudden, they would be appearing down here, 
and your black contractors would be saying yes, but 
how about me? How about me? When they start saying, 
you’ve got to cut us in. That is an unofficial way of 
manipulating the free-enterprise system. And, it doesn’t 
work. And, it isn’t going to work.

Now, I think with the accusations that have been 
made here tonight and the questions that have repeatedly 
been asked of every speaker that we’ve had, that it 
would behoove you co-sponsors of this bill to have brought 
in— and I still want it brought in at some later date-~a 
list of minority bonded— now, I’m talking about respon­
sible minority contractors in this City. Because I know, 
myself, from experience— I inquired one time about a 
minority person that I thought wasn’t getting any busi­
ness in the City, and you-all said no way do you want 
us dealing with them.

So, you just make your choice among minority con­
tractors. And you have acknowledged to me first hand 
that you recognize there was some responsible and some 
not responsible. But, I think if there are this great 
number out there, I want to see a list of them. Because 
I think then these gentlemen out here should have a 
copy, and they will know where to seek their member­
ship.
[56] But, to just impugn them and say, you’re exclu­
sive, when I am a part of an organization that has been 
in a similar situation, and we are having the same prob­
lem. And to accuse people of being racially motivated



48

when they do not have black members I think is most 
unfair.

MR. KENNEY: Mr. Mayor?
MAYOR WEST : Mr. Kenney.
MR. KENNEY: When decisions are to be made in

forums such as this, in which many individuals will 
make allegations which we’ve heard over the years, that 
minorities have some inferiors— and the inference has 
been made here this evening. Again, I want to remind 
all Members of the Council, and to the public in gen­
eral, that we, as minorities, heard this in the ’60’s, we 
heard it in the ’70’s, and in 1983, we’re hearing it still. 
And when the votes are taken on these kinds of issues, 
you really show your true colors.

MR. RICHARDSON: Mr. Mayor?
MAYOR WEST: Mr. Richardson.
MR. RICHARDSON: Trying to at least wrap this

thing up on a high note, at least something positive to 
think about, certainly I’m sorry to see that we’ve turned 
it into something that appears to be so ugly, because I 
think Richmond has better than this. And I just want to 
tell the public that it’s not really this bad. It’s really 
not this bad. It’s going to be much better. Because num­
ber one, I want you, [57] Mr. Deese, with Mr. Carter’s 
assistance, to provide Ms. Wake with that State com­
puterized list of bonded, qualified, quote, unquote, re­
sponsible businesses. And two, I want to remind you 
that the same thing was said in Atlanta when they built 
the largest airport in the world, and minority contrac­
tors finished it on time, in budget, and nobody is com­
plaining now.

So, if you want to exercise that self-fulfilling prophesy 
of failure, then that’s probably what would happen. But, 
if you want to look at it and say, we can do it, then that’s 
what we will do. And I hope we approach it from that 
vantage point and not from a defeatest vantage point, 
for some unstated reason.

MS. W AKE: Mayor West?



49

M AYOR WEST: Ms, Wake.
MS. WAKE: I want to respond that you and Mr.

Kenney, etc., have used the word inferior. I have not 
heard that word.

MR. RICHARDSON: I didn’t say that.
MS. WAKE: You did. You just used it, because I

wrote it right down when you used it. And you said in­
ferior. What I hear is numbers. You did so. You come 
listen to the recording tomorrow. You said inferior, that 
we’re saying inferior. And ft is numbers that I’m hear­
ing. It’s not the inferior fact. It’s the fact of where do 
we find the people to bid, because of the lack of num­
bers of these craftsmen. [58] And that’s the point they 
are speaking to. And you’re the one that brings in the 
other, that hasn’t been mentioned.

MAYOR WEST: Call for the question, please.
MR. DUFFEY: Mr. Gillespie?
MR. GILLESPIE: I abstain.
MR. DUFFEY: Mr. Kemp?
MR. KEMP: No.
MR. DUFFEY: Mr. Kenney?
MR. KENNEY: Aye.
MR. DUFFEY: Mr. Leidinger?
MR. LEIDINGER: Aye.
MR. DUFFEY: Ms. McDaniel?
MS. McDANIEL: Aye.
MR. DUFFEY: Mr. Marsh?
MR. MARSH :Aye.
MR. DUFFEY: Mr. Richardson?
MR. RICHARDSON: Aye.
MR. DUFFEY: Ms. Wake?
MS. W AKE: No.
MR. DUFFEY: Mr. Mayor?
MAYOR WEST: Aye.
MR. DUFFEY: Aye’s, 6; no’s, 2; and one abstention.

(The hearing was concluded.)



[59] I, Marion L. Gerheart, do hereby certify that the 
foregoing is a true and accurate transcription of my 
shorthand notes taken from the electronically-produced 
proceedings.

Given under my hand this 30th day of January, 1984.

/ s /  Marion L. Gerheart 
Marion L. Gerheart 
Notary Public
Commonwealth of Virginia at large

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